United States v. Brian L. Johnson, A/K/A Brian Holland

152 F.3d 553, 1998 U.S. App. LEXIS 19856, 1998 WL 476147
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 17, 1998
Docket97-5323
StatusPublished
Cited by12 cases

This text of 152 F.3d 553 (United States v. Brian L. Johnson, A/K/A Brian Holland) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brian L. Johnson, A/K/A Brian Holland, 152 F.3d 553, 1998 U.S. App. LEXIS 19856, 1998 WL 476147 (6th Cir. 1998).

Opinions

NORRIS, J., delivered the opinion of the court, in which KRUPANSKY, J., joined. COLE, J. (pp. 558-59), delivered a separate opinion concurring in part and dissenting in part.

ALAN E. NORRIS, Circuit Judge.

Defendant Brian L. Johnson appeals from the sentence imposed by the district court after he pleaded guilty to one count of damaging religious property in violation of 18 U.S.C. § 247(c).

I.

According to a four-count superseding indictment, defendant set fire to a church in Dyersburg, Tennessee, on July 22, 1996. The church served a predominantly white congregation; defendant is black. The indictment charged him with two counts of arson, 18 U.S.C. § 844(i), one count of intentionally damaging religious property, 18 U.S.C. § 247(a)(1), and one count of intentionally damaging religious property “because of the race and color of individuals associated with that religious property.” See 18 U.S.C. § 247(c).1 Defendant pleaded [555]*555guilty to the last offense in exchange for dismissal of the remaining counts.

On the day of the offense, defendant stole an automobile and, as related by the pre-sentence report:

He drove the vehicle behind the church and positioned it so that the driver’s side door was up against the church. He set the vehicle on fire by using his cigarette lighter to ignite papers and motor oil which were in the back seat of the stolen vehicle. The defendant had spread the “motor oil” throughout the interior of the vehicle to enhance the fire. By setting fire to the vehicle parked behind the church, the defendant intentionally caused the fire to spread to the church.

Defendant was apprehended fleeing the scene. He quickly gave a confession, which included his belief that “Satan had led him to the particular vehicle with the keys in it, and that he was doing the will of Satan by burning the church which would cause racial tension between blacks and whites.”

The district court sentenced defendant to sixty months of imprisonment, three years of supervised release, and a fíne of $25,000.2

II.

The focus of this appeal involves the district court’s decision to sentence defendant pursuant to U.S.S.G. § 2K1.4(a)(l) rather than § 2K1.4(a)(2). The guideline provides: (a) Base Offense Level (Apply the Greatest):

(1) 24, if the offense (A) created a substantial risk of death or serious bodily injury to any person other than a participant in the offense, and that risk was created knowingly; or (B) involved the destruction or attempted destruction of a dwelling;
(2) 20, if the offense (A) created a substantial risk of death or serious bodily injury to any person other than a participant in the offense;
(B) involved the destruction or attempted destruction of a structure other than a dwelling; or (C) endangered a dwelling, or a structure other than a dwelling;

U.S.S.G. § 2K1.4 (1995). After hearing testimony from an expert in emergency medicine, the chief of the fire department that responded to the blaze, and an ATF agent who is an expert in determining the cause and effect of fires, the district court concluded that defendant merited the higher base offense level because he knowingly created a substantial risk of injury to fire department personnel and to the nearby parsonage.

This court has recently explained that a proper determination of which subsection of U.S.S.G. § 2K1.4(a) applies involves two steps:

First, we must determine whether defendant’s actions created a substantial risk of death or serious bodily injury. Courts of appeal considering this issue have declined to develop any clear litmus test for resolving this point; instead, they have generally adopted a case-by-case approach which requires assessment of all relevant factors....
The second step of our analysis requires us to determine whether the defendant “knowingly” created a substantial risk of death or serious bodily injury. The answer to this inquiry is not always as clear cut as one might hope. On one hand, a defendant would certainly act with the requisite knowledge if he set a fire during the night in an apartment building that he knew to be inhabited. On the other hand, we would be hard-pressed to find that an individual knowingly created a substantial risk when he torched his neighbor’s garage, believing it to be empty, when it in fact contained explosives....
[556]*556Because the guidelines do not define “knowingly,” several courts of appeal have looked to the Model Penal Code for help in defining that term.... The Model Penal Code defines “knowingly” as follows:
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
Model Penal Code § 2.022(2)(b). The Model Penal Code’s definition of the culpable mental state of knowledge as “practically certain” that conduct will cause a certain result tends to track the accepted understanding of the term as it is used in the context of criminal law.

United States v. Johnson, 116 F.3d 163, 165-66 (6th Cir.1997) (citations and footnote omitted); see also United States v. Latouf, 132 F.3d 320, 332 (6th Cir.1997) (while defendant may not have specifically attempted to put someone at risk, he should have expected that fire fighters would face danger), cert. denied, — U.S. -, 118 S.Ct. 1572, 140 L.Ed.2d 805 (1998); United States v. Turner, 995 F.2d 1357, 1365 (6th Cir.1993) (defendant should have known that weather conditions would put fire fighters at a substantial risk).

In this ease, the district court heard testimony about the nature of the fire. It then opted for the higher base offense level for the following reasons:

[Defendant] stated to witnesses that he had stashed the car and soon fire trucks would be coming, indicating that he knew that if a fire was set to the church that emergency personnel would respond, and in responding they would have to fight the fire and would obviously be subjected to a risk. And the government argues that this is a risk that was created knowingly.
In this case the — while the winds were not excessively high, it was a very warm day. There was a mild wind as testified by, I believe, the witnesses.

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Bluebook (online)
152 F.3d 553, 1998 U.S. App. LEXIS 19856, 1998 WL 476147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brian-l-johnson-aka-brian-holland-ca6-1998.