                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUL 23 2019
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10068

                Plaintiff-Appellee,             D.C. No.
                                                2:15-cr-00003-GEB-1
 v.

PAUL LELAND JOHNSON,                            MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Eastern District of California
                  Garland E. Burrell, Jr., District Judge, Presiding

                       Argued and Submitted June 10, 2019
                            San Francisco, California

Before: SCHROEDER and M. SMITH, Circuit Judges, and RAYES,** District
Judge.

      Paul Johnson appeals his conviction and sentence for two counts of making

a false statement in violation of 18 U.S.C. § 1001. Johnson made the statements

for which he was convicted as part of an arson investigation. After applying an



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
arson cross-reference and adding enhancements for obstructing justice and

endangering the public under the Sentencing Guidelines, the district court imposed

a 41-month sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

      1. Sufficient evidence supports Johnson’s false-statement convictions.

Johnson first told investigators: “I called dispatch to report that my vehicle was

fully engulfed . . . [a] member of the public then pulled up.” (emphasis added).

Johnson later revised his statement, telling investigators that after members of the

public pulled up he told them he “would call for help,” not that he had already

done so. Neither statement was true: Johnson did not call for help before

members of the public arrived, nor did he tell them that he would call for help. A

reasonable juror could conclude that Johnson made these statements to mislead

investigators and obfuscate the timeline of events, diverting suspicion from him.

See, e.g., United States v. Service Deli, Inc., 151 F.3d 938, 941 (9th Cir. 1998)

(“[T]he materiality requirement of a § 1001 violation is satisfied if the statement is

capable of influencing or affecting a federal agency.”) (original emphasis); United

States v. Selby, 557 F. 3d 968, 978 (9th Cir. 2009) (finding that the defendant acts

willfully if “the false statement [is made] under circumstances that support a

reasonable inference that she knew it was false”).

      2. The district court did not abuse its discretion in applying the arson cross-


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reference. Although the jury did not reach a verdict on Johnson’s arson charge, at

sentencing the district court concluded that Johnson’s crime “involved” arson such

that the Sentencing Guideline’s arson cross-reference should apply. U.S.S.G.

§§ 2B1.1(c)(2), 2K1.4(a)(3). In applying the cross-reference, the district court

relied on the following evidence: Johnson parked his U.S. Forest Service truck

against the tree line and on top of forest debris; pine needles from the burn site

were stuffed between the truck’s engine and transmission; open flame ignition

caused the truck fire; Johnson—a trained firefighter with access to an

extinguisher—did not attempt to subdue the fire; Johnson initially did not call for

emergency services; and Johnson provided investigators inconsistent accounts of

relevant events. The district court did not clearly err because the evidence was

sufficient to find by clear and convincing evidence that Johnson had committed the

crime of arson. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.

2017) (explaining that district court’s factual findings are reviewed for clear error).

Thus, the district court’s application of the arson cross-reference was proper. See

United States v. Gonzalez, 336 F. App’x 701, 703 n.2 (9th Cir. 2009) (affirming

application of arson reference where jury acquitted defendant of arson); United

States v. Hopper, 177 F.3d 824, 832–33 (9th Cir. 1999) (observing that a court may

consider acquitted conduct in its sentencing calculations if it finds that the

government proved the conduct by a preponderance of the evidence (or, where


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required, by clear and convincing evidence)).

      Nor did application of the cross-reference violate the Sixth Amendment. See

United States v. Treadwell, 593 F.3d 990, 1017 (9th Cir. 2010) (holding that a

sentence that rests on a judge-made finding does not violate the Sixth Amendment

if the sentence falls within the statutory maximum authorized by the jury’s

verdict). Johnson’s 41-month sentence falls below the ten-year maximum he faced

for his false-statement convictions. 18 U.S.C. § 1001.

      3. The district court did not abuse its discretion in finding that Johnson’s

“offense . . . endangered . . . a place of public use[.]” U.S.S.G. § 2K1.4(a)(2); see

Gasca-Ruiz, 852 F.3d at 1170 (application of the guidelines is reviewed for abuse

of discretion). In applying the enhancement, the district court relied on evidence

that Johnson set fire to his U.S. Forest Service truck, which he parked against the

tree line on the National Forest’s Mormon Emigrant Trail; that the fire spread

beyond the truck into the nearby wildland; and that firefighters on scene reported

that the burning truck created an “immediate threat to the wildland.” See United

States v. Holmes, 646 F.3d 659, 662 (9th Cir. 2011) (“Endangering means putting

the property at risk but resulting in no actual damage, or damage that is less than

destruction.”).

      4. The district court did not abuse its discretion in applying a two-level

enhancement for obstructing justice in violation of U.S.S.G. § 3C1.1. Applying


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this enhancement to a criminal defendant’s trial testimony raises the risk of

undermining the defendant’s constitutional right to testify on his own behalf. See

United States v. Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014). To mitigate this

risk, a “district court applying the enhancement based on perjury must expressly

find that ‘(1) the defendant gave false testimony, (2) on a material matter, (3) with

willful intent.’” United States v. Johnson, 812 F.3d 757, 761 (9th Cir. 2016)

(quoting Castro-Ponce, 770 F.3d at 822). Here, the district court adopted the

Probation Office’s Presentence Investigation Report, which found that Johnson

committed perjury during his testimony at trial, and expressly rejected Johnson’s

argument that his testimony was not willfully false. The district court therefore

made all findings necessary to trigger the enhancement. See United States v.

Taylor, 749 F.3d 842, 848 (9th Cir. 2014) (finding that the district court did not err

in failing to make a specific finding of perjury where it made sufficient findings

that the defendant acted willfully).

      AFFIRMED.




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