United States v. Mark Wesley Johnson,defendant-Appellant

Citations: 187 F.3d 1129; 99 Cal. Daily Op. Serv. 6584; 99 Daily Journal DAR 8417; 1999 U.S. App. LEXIS 18882; 1999 WL 615149Docket: 98-30297

Court: Court of Appeals for the Ninth Circuit; August 16, 1999; Federal Appellate Court

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Mark Wesley Johnson was sentenced to 71 months in prison after pleading guilty to possession of a firearm by a prohibited person under 18 U.S.C. § 922(g)(9). The case arose from an incident on March 20, 1997, where Johnson physically assaulted his wife, Kelly, in their car and subsequently fired a machine gun outside their apartment. Following the assault, Kelly called 911, fearing for her life, while Johnson, in an agitated and intoxicated state, retrieved the firearm and discharged it. Police found the weapon in the apartment after Kelly consented to a search. 

On February 18, 1998, Johnson was indicted for unlawful possession of a firearm due to a previous misdemeanor domestic violence conviction and for unlawful possession of a machine gun. He pleaded guilty to the firearm charge on August 3, 1998, with a plea agreement that included a recommendation for the lower end of the sentencing range in exchange for dropping the machine gun charge. 

During sentencing on October 15, 1998, the government sought two enhancements: a four-level enhancement for using the firearm in connection with another felony and a two-level enhancement for restraining the victim during the offense. Despite Johnson's objections, the district court upheld both enhancements, leading to the appeal. The Ninth Circuit vacated Johnson's sentence and remanded for re-sentencing before a different district judge.

The district court determined a net offense level of 21 for Johnson, resulting in a sentencing range of 57 to 71 months. Although the probation office recommended a 71-month sentence, the government proposed a lower sentence in its plea agreement. Ultimately, the district court imposed the maximum sentence of 71 months, which Johnson is currently serving.

Regarding the sentencing enhancements, the district court applied a four-level increase under U.S.S.G. § 2K2.1(b)(5) for committing "another felony offense," based on Johnson's alleged unlawful use of a weapon under Oregon law. However, the appellate review found that the district court abused its discretion in its application of the Sentencing Guidelines.

The enhancement was based on the interpretation of Oregon Revised Statute § 166.220(1), which defines unlawful use of a weapon in two subsections. The court failed to specify which subsection it relied upon for the enhancement. The analysis revealed that Johnson fired his weapon into the ground, which does not satisfy the criteria for subsection (a) since there was no attempt or intent to use the weapon against another person. Additionally, while the government contended that Johnson violated subsection (b), the appellate court noted that the evidence did not support that claim either, as the statute requires that the weapon be fired at or in the direction of specified targets, which was not demonstrated in this case. The district court's failure to consider these critical elements constituted an abuse of discretion.

Johnson did not fire his weapon towards any person, structure, or vehicle, as mandated by S 166.220(1)(b). He only discharged the weapon into the ground, and there was no evidence he aimed it at anyone, including a nearby child. The government conceded this point during oral arguments, affirming that Johnson's actions did not meet the criteria for a felony under S 166.220(1)(a) or (b). Consequently, the district court erred in enhancing Johnson's sentence by four levels under U.S.S.G. S 2K2.1(b)(5) for using a weapon in connection with a felony.

Regarding the two-level enhancement under U.S.S.G. S 3A1.3 for victim restraint, the district court's interpretation was reviewed de novo. Johnson admitted to briefly restraining Kelly by holding her in her car on March 20 when he took her keys to prevent her from leaving. The term "in the course of the offense" is undefined, but a Sixth Circuit ruling indicated that acts of restraint should be assessed as "relevant conduct" under U.S.S.G. S 1B1.3. Therefore, the court will examine whether Johnson's actions of restraint qualify as relevant conduct linked to his possession of a firearm by a prohibited person.

The critical inquiry revolves around whether Johnson's physical restraint of Kelly qualifies under U.S.S.G. § 1B1.3(a)(1)(A). The relevant temporal option in this case is whether the restraint occurred during the offense of possession on March 20. If Johnson restrained Kelly while in possession of the firearm, the enhancement for restraint was justified. Legal definitions of possession include both constructive and joint possession, which require evidence of dominion or control over the contraband or the location where it is found. Johnson had dominion over the apartment containing the gun while restraining Kelly at her car, thus fulfilling the possession requirement and justifying the two-level enhancement for restraint of a victim.

Regarding Johnson's claim of breach of plea agreement, he asserts the district court's sentence, at the high end of the guideline range, stemmed from such a breach. The Ninth Circuit's standards for reviewing breaches are inconsistent, but in this case, either standard confirms the government did breach the plea agreement by using a victim impact statement to influence sentencing. Johnson presents three breach claims, two of which are unconvincing. First, he argues the government recommended a different basis for a four-level enhancement than specified in the plea agreement. However, the government adhered to the agreement by recommending only the agreed enhancements. Second, Johnson contends the government's recommendation did not comply with the plea agreement's stipulation for a low-end sentence. The prosecutor stated compliance with the plea agreement while acknowledging the sentencing range, supporting the argument that the government did not breach its obligations.

The government is obligated to make a specific sentencing recommendation it has agreed to, though it is not required to do so with enthusiasm. In this case, the prosecutor made the recommended low-end sentence suggestion but did so without enthusiasm. Johnson's third claim of breach succeeded because the prosecutor introduced a victim impact statement that was irrelevant to the offense of possession of a weapon by a prohibited person. This statement was intended to influence the court towards a harsher sentence, which constituted a breach of the plea agreement to recommend a lower sentence. The district court's prior intention to impose a higher sentence does not mitigate this breach under the law of contractual plea agreements. Consequently, Johnson's sentence is vacated and remanded for resentencing before a different judge. The two-level enhancement for restraint of the victim is upheld, but the enhancement related to weapon use in another felony is not supported by the facts.

The ruling is partially affirmed, vacated, and remanded. Johnson was previously convicted in 1994 for misdemeanor domestic violence against Julie McDonald. A specific possession offense "with intent to use unlawfully against another" likely does not qualify for a sentencing enhancement under U.S.S.G. § 2K2.1(b)(5) as it is classified as a possession offense. The government improperly omitted critical language from the Oregon statute in its brief, which is viewed unfavorably in legal proceedings. Other relevant sections of U.S.S.G. § 1B1.3 do not apply in this case, as they pertain to different types of criminal conduct. Under 18 U.S.C. § 3661, the district court has the authority to consider a defendant's background and conduct when determining a sentence. The case is remanded for re-sentencing by a different judge, without criticism intended towards the original judge.

Judge Tashima concurs with the majority opinion, except for the section regarding "physical restraint" under U.S.S.G. § 3A1.3. He dissents from the majority’s conclusion that Johnson's actions constituted physical restraint. Johnson's act of grabbing the keys from Kelly Johnson's car does not meet the Guidelines' definition of physical restraint, which requires a forcible action such as tying or locking up a victim. Kelly escaped immediately after Johnson took the keys, and there was no use of force involved. Tashima cites previous cases to support that actual physical restraint is necessary for the enhancement to apply, arguing that the enhancement was erroneously applied in this situation.