noting that whether a defendant’s statement constituted a threat is an issue of fact
How later courts described this case
- noting that whether a defendant’s statement constituted a threat is an issue of fact
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3849
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN M. JOHNSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 05 CR 30011—Jeanne E. Scott, Judge.
____________
ARGUED MAY 23, 2007—DECIDED AUGUST 15, 2007
____________
Before EASTERBROOK, Chief Judge, and BAUER and
MANION, Circuit Judges.
BAUER, Circuit Judge. Kevin Johnson pleaded guilty
to conspiring with others to manufacture and to distrib-
ute 50 or more grams of methamphetamine or more
than 500 grams of a substance containing methamphet-
amine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The
district court sentenced Johnson to 220 months’ imprison-
ment. Johnson appeals his sentence, arguing that the
district court erred in finding that his confrontation of
a confidential informant prior to his sentencing hear-
ing reflected his intent to obstruct justice and dis-
qualified him from being eligible for the sentencing guide-
line’s “safety valve” provision. We affirm.
2 No. 06-3849
I. Background
From September 30, 2003 through January 14, 2004,
Johnson and at least seven of his drug associates manu-
factured and distributed approximately 2,500 grams of a
substance containing methamphetamine in Taylorville,
Illinois. Johnson was arrested in possession of marijuana
and 7.5 grams of methamphetamine on January 15, 2004.
In March of 2004, a number of Johnson’s drug associates,
including Julia Raymond, began cooperating with law
enforcement agents, implicating themselves and Johnson
in the conspiracy. On March 23, 2004, Raymond told
investigating agents that Johnson had cooked metham-
phetamine during late 2001 and that, over a four-month
period, Johnson had sold two to three grams of metham-
phetamine to two different men four times a week.
On March 22, 2006, Johnson pleaded guilty to both
counts of the indictment and was free on bond pending
sentencing. The probation officer completed and issued
Johnson’s presentence investigation report (PSR) on
May 26, 2006. The PSR included the information pro-
vided by Raymond, who was referred to as a confidential
source in the PSR. Shortly after it was issued, Johnson
read the PSR and determined that one of the confidential
sources listed therein was Raymond. At the time, Johnson
and Raymond were both working for the same employer.
Johnson worked as a machine operator in one building,
and Raymond worked as an assembler in another build-
ing located on the same site.
On June 1, 2006, Johnson left his work area and ap-
proached Raymond at her work station. According to
Johnson, he approached Raymond because he wanted to
ask her why she had lied to law enforcement agents
about him. Raymond denied talking to any investigators
about him. Johnson then said, “Don’t lie to me, Julia . . . .
I have accepted responsibility for my actions but now you
No. 06-3849 3
are going to have to live with what you [did].” Both par-
ties admit that the conversation became heated after
Raymond told Johnson that her cousin, a retired police
officer, had told her to let him know if Johnson ever
bothered her. Johnson told Raymond that he was going
to do his time in jail just as she should have to do her
time and that she was no better than anyone else. Ray-
mond responded that she was going to call her cousin
and have him straighten Johnson out. Johnson then
directed profanities at Raymond and walked away.
Following the incident, Raymond told her work super-
visor that Johnson had approached her and kicked a crate
near where she was working to get her attention. She
claimed that Johnson confronted her claiming that her
cousin had busted him for cooking methamphetamine.1
She also said that Johnson had directed profanities at
both her and her cousin. Later that day, Raymond con-
tacted her cousin, who told her to contact Jeff Brown, a
lieutenant with the Christian County Sheriff ’s Office.
On June 6, 2006, Raymond contacted Officer Brown and
told him that Johnson had confronted her about state-
ments that she had made to law enforcement and had
accused her of lying to the investigators. She also claimed
that during the encounter Johnson told her that he had “a
gun and three bullets and if one bullet doesn’t do the job,
one of the other two will”.
After learning about Johnson’s conduct, the probation
officer determined that Johnson had violated the terms of
his pretrial release by threatening or intimidating Ray-
1
Raymond later testified that she falsely reported some of the
facts surrounding the incident to her employer because she did
not want her employer to know that she had previously used
drugs and had been involved with a group of people including
Johnson.
4 No. 06-3849
mond and therefore revised Johnson’s PSR. The PSR found
that Johnson should be held accountable for 2.66 kilo-
grams of a substance containing methamphetamine, which
subjected him to a base offense level of 34. It also deter-
mined that Johnson’s conduct during the conspiracy had
created a substantial risk of harm to human life and the
environment, which resulted in a three-level enhance-
ment under U.S.S.G. § 2D1.1(b)(6)(B). And, stating that
Johnson had threatened or intimidated Raymond, the
PSR recommended applying a two-level enhancement
pursuant to U.S.S.G. § 3C1.1, for attempted obstruction of
justice and denying a reduction for acceptance of respon-
sibility pursuant to U.S.S.G. § 3E1.1. Finally, the PSR
found that Johnson’s intimidation of Raymond constituted
a credible threat of violence, and therefore, Johnson did
not qualify for the safety valve provision of U.S.S.G.
§ 5C1.2. Accordingly, the PSR calculated that the result-
ing guidelines sentencing range for Johnson, who had a
category one criminal history and an offense level of 39,
was 262 to 327 months.
Johnson objected to the PSR, challenging its findings
that he qualified for the obstruction of justice sentencing
enhancement and that he did not qualify for the safety
valve and acceptance of responsibility reductions. He
argued that his behavior towards Raymond on June 1 was
neither threatening nor intimidating and that he did not
attempt to obstruct or impede justice by approaching
Raymond.
At Johnson’s sentencing hearing, the Judge listened
to the testimony of Johnson, Raymond, their work super-
visors, and human resource officers who had information
concerning the June 1 encounter, as well as Officer Brown.
After listening to the witnesses, the Judge decided not
to credit Raymond’s claim that Johnson had told her
that he had a “gun and three bullets”, explaining that
she did not feel the evidence was strong enough to base
No. 06-3849 5
a finding on those purported statements. However, she did
find that Johnson had threatened and attempted to
intimidate Raymond when he kicked a crate to get her
attention, asked her why she had lied, told her “now you
are going to have to live with what you have done,” and
directed profanities at her. The Judge also found that
this act was done to impede the administration of justice.
The district court agreed with the recommendations
of the PSR and found Johnson’s sentencing guidelines
range to be 262 to 327 months. In determining Johnson’s
sentence, the district court first considered the relevant
18 U.S.C. § 3553(a) factors. The district court noted that
a sentence within the advisory guidelines range would
result in an unwarranted disparity when compared to
the sentences received by defendants in related cases and
others involved in the conspiracy. The Judge concluded
that a sentence of 230 months would be appropriate to
avoid the disparity. Because Johnson had already served
a ten-month sentence in a related state court case, the
court reduced his sentence by ten months and sentenced
Johnson to 220 months’ imprisonment. This timely ap-
peal followed.
II. Discussion
A. Obstruction of Justice Enhancement
Johnson first challenges the district court’s decision to
enhance his sentence for obstructing justice. We review
de novo whether the district court made the appropriate
findings to support an obstruction of justice enhancement
and review the factual findings underlying this deter-
mination for clear error. United States v. Sheikh, 367 F.3d
683, 686 (7th Cir. 2004).
Under § 3C1.1 of the sentencing guidelines, a defen-
dant’s offense level should be enhanced by two levels
6 No. 06-3849
if “the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice during the course of the investigation, prosecution,
or sentencing of the instant offense of conviction.” A threat
to a potential witness is sufficient to warrant an obstruc-
tion of justice enhancement, where the statement was
intended to threaten, intimidate, or otherwise unlawfully
influence that person. United States v. Johnson, 46 F.3d
636, 638 (7th Cir. 1995) (citations omitted); U.S.S.G.
§ 3C1.1, comment (n. 4).
Johnson contends that his encounter with Raymond
was insufficient to establish that he had attempted to
obstruct justice. He claims that he neither threatened
nor intended to threaten Raymond on June 1. The deter-
mination of what Johnson intended is a question of fact.
See United States v. Saunders, 166 F.3d 907, 912 (7th Cir.
1999) (noting that whether a defendant’s statement
constituted a threat is an issue of fact). The district court
found that Johnson had attempted to intimidate Ray-
mond, stating:
[t]he context of the way he approached her, the fact
that he approached her at all . . . conveyed to her that
he knew she was a [confidential] source, conveyed to
her that he thought she was a liar, and ended with a
comment you’re going to have to live with what you’ve
done would, I think, be conceived as a threat or in-
timidation by anyone looking at this objectively. . . .
I think his statements are . . . an effort to intimidate
a potential witness that he knew was a potential
witness for sentencing because of the release of the
Pre-Sentence Report.
We agree. The timing, setting, and context of Johnson’s
confrontation of Raymond supports the finding that he
was attempting to threaten or intimidate her. This find-
ing was not clearly erroneous, and the district court did
No. 06-3849 7
not err by enhancing Johnson’s sentence two levels
pursuant to the obstruction of justice enhancement.
B. Safety Valve Provision
Johnson also challenges the district court’s determina-
tion that he did not qualify for the safety valve provision.
The safety valve allows the district court to depart below
the statutory mandatory minimum sentence for certain
drug offenses. See U.S.S.G. § 5C1.2; 18 U.S.C. § 3553(f ).
Johnson contends that he qualified for an offense-level
reduction pursuant to U.S.S.G. § 2D1.1(b)(9), which
provides for a two-level reduction if the defendant
satisfies the five criteria set forth in § 5C1.2(a). The
district Judge refused to apply the safety valve reduction
because she found that Johnson had failed to satisfy
§ 5C1.2(a)(2). The second criteria under § 5C1.2(a) pro-
vides that the safety valve provision only applies if the
“defendant did not use violence or credible threats of
violence . . . in connection with the offense.”
We review the district court’s findings about the fact-
ual predicates for the safety valve reduction for clear
error. See United States v. Harrison, 431 F.3d 1007 (7th
Cir. 2005) (citing United States v. Williams, 202 F.3d 959,
964 (7th Cir. 2000)). Because we find no error in the
district court’s determination that Johnson’s confronta-
tion of Raymond on June 1 constituted a credible threat of
violence, we conclude that the she did not err in ruling
that Johnson was ineligible to receive a two-level reduc-
tion pursuant to the safety valve provision.
III. Conclusion
For the foregoing reasons, the sentence imposed is
AFFIRMED.
8 No. 06-3849
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-15-07