United States v. Logsdon

26 F.4th 854

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 28, 2022
• Docket: 19-7055
• Status: Published

Opinion

Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 28, 2022

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-7055

JULIEANN LOGSDON,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:19-CR-00023-RAW-1) _________________________________

Gary L. Davis, II, Gary Davis Law Group, Tulsa, Oklahoma, for Defendant-Appellant.

Linda A. Epperley, Assistant United States Attorney (Brian J. Kuester, United States Attorney, and Gregory Dean Burris, Assistant United States Attorney, with her on the brief), Office of the United States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee. _________________________________

Before McHUGH, EBEL, and EID, Circuit Judges. _________________________________

EID, Circuit Judge. _________________________________

Defendant-Appellant Julieann Logsdon pleaded guilty to making a false

statement in violation of 18 U.S.C. § 1001. She made the statement, which

concerned her whereabouts and activities on the night of a suspected arson, to a

federal agent investigating that arson. At sentencing, the district court applied a Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 2

cross-reference that increases the Sentencing Guidelines’ advisory range where “the

offense involved arson.” U.S.S.G. § 2B1.1(c)(2). Logsdon challenges the

application of the cross-reference. Exercising jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742, we affirm.

I.

Mail-Mart is a mail and shipping business in Tahlequah, Oklahoma. On the

morning of August 26, 2017, Sarah Hicks, an employee of Mail-Mart, arrived to open

the store and discovered that a fire had occurred. Hicks reported the fire and

Tahlequah officials called in the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“ATF”). ATF Special Agent Ashley Stephens determined that the fire

was an arson and opened an investigation.

All Mail-Mart employees, including Julieann Logsdon, were interviewed as

part of the investigation. At the start of their interview on August 29, 2017, Agent

Stephens told Logsdon that he was investigating the Mail-Mart fire. Logsdon

confirmed that she understood the purpose of the interview. She told Agent Stephens

that she left Mail-Mart around 4:30 p.m. on the date of the fire but returned around

9:00 p.m. She explained that she and her husband were on their way to Tulsa,

Oklahoma, when they realized she did not have her debit card. She claimed that they

drove back to Tahlequah to look for the card, first unsuccessfully searching her

home, and then checking Mail-Mart. She estimated arriving at Mail-Mart around

9:00 p.m. and said she reset the alarm before leaving.

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Investigators disproved Logsdon’s story when they compared Mail-Mart’s

alarm records with her cell phone records. The alarm records revealed that Mail-

Mart’s alarm was deactivated at 9:33 p.m. But Logsdon’s phone records placed her

in the Tulsa area at around 9:45 p.m., when the owner of Mail-Mart called her. Tulsa

is over sixty miles from Tahlequah, so it would have been impossible for Logsdon to

deactivate an alarm at 9:33 p.m. in Tahlequah and take a call in Tulsa twelve minutes

later.

Logsdon was interviewed again on September 21, 2017. After waiving her

Miranda rights, she repeated the substance of her initial statement but admitted the

twelve minutes between the time shown on the alarm records and the time shown on

the phone records would not be enough time to travel to Tulsa. She attempted to

reconcile the 9:33 p.m. alarm deactivation with her original narrative by stating that

the alarm might not have beeped when she went into Mail-Mart. Logsdon avoided

further questioning about the alarm and requested an attorney.

On February 13, 2019, Logsdon was charged with making a false statement in

violation of 18 U.S.C. § 1001. Her indictment stated that she “claim[ed] she entered

the Mail[-]Mart and turned off the alarm, at a specific date and time,” when she

“knew” that “she did not enter the Mail[-]Mart and did not turn off the alarm at that

time.” App’x Vol. I at 9. Logsdon entered a guilty plea on April 1, 2019. She told

the magistrate judge that she had “made a false statement to an ATF agent that was

material in his investigation.” Id. at 43–44. The Presentence Report (“PSR”)

calculated Logsdon’s offense level at 24 after applying a Federal Sentencing

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Guidelines (“Guidelines”) cross-reference for an “offense [that] involved arson.”

U.S.S.G. § 2B1.1(c)(2); see also id. § 2K1.4(a)(1).

After credit for acceptance of responsibility, the PSR reduced Logsdon’s

offense level to 21 and calculated a Guidelines range of 37–46 months of

imprisonment. Logsdon moved for a variance, which the district court partially

granted. The court sentenced her to eighteen months of imprisonment followed by

two years of supervised release.1 At the sentencing hearing, the court upheld the

application of the arson cross-reference in the PSR, explaining that the Mail-Mart fire

“was an arson, [and Logsdon] knew it was being investigated as an arson at the time

she made her false statement.” App’x Vol. I at 75.

Logsdon appeals the application of the cross-reference. She argues that her

false statement offense did not involve arson because there was no evidence tying her

to the arson under investigation and her statement did not mention, let alone cause,

arson. If we agree that the cross-reference was improperly applied, she argues that

the government should be barred from introducing new evidence on remand. We do

not reach that issue because we affirm the application of the cross-reference and, with

it, Logsdon’s sentence.

1 Although Logsdon is no longer incarcerated, her supervised release is ongoing, so this appeal is not moot. See United States v. Montgomery, 550 F.3d 1229, 1231 n.1 (10th Cir. 2008). 4 Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 5

II.

The applicable provision of the Guidelines for a violation of 18 U.S.C. § 1001

is § 2B1.1. It instructs courts to apply a cross-reference under § 2K1.4 “[i]f the

offense involved arson.” U.S.S.G. § 2B1.1(c)(2). The effect is a base offense level

of 24. See id. § 2K1.4(a)(1).

Logsdon contends that the cross-reference does not apply to her false

statement in the Mail-Mart investigation because she did not mention arson and there

was no evidence that she was involved in the arson under investigation. She asks us

to hold that making a false statement during an arson investigation is insufficient to

trigger the cross-reference. To assess these arguments, we must interpret the phrase

“offense involved arson,” as it appears in the Guidelines. That is a question of law

reviewed de novo. See United States v. Maldonado-Passage, 4 F.4th 1097, 1103

(10th Cir. 2021). “We interpret the Sentencing Guidelines according to accepted

rules of statutory construction.” United States v. Sweargin, 935 F.3d 1116, 1120

(10th Cir. 2019) (quoting United States v. Robertson, 350 F.3d 1109, 1112 (10th Cir.

2003)). “When interpreting a guideline, we look not only to the language in the

guideline itself, but also to the Sentencing Commission’s interpretive and

explanatory commentary to the guideline.” Id. at 1120–21.

III.

To assess whether the district court properly applied the arson cross-reference,

we will consider what each word in the provision that invokes it—“offense,”

“involved,” and “arson”—means in light of the Guidelines, our jurisprudence, and

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Logsdon’s false statement offense. The Guidelines’ commentary defines “offense”

as “the offense of conviction and all relevant conduct under § 1B1.3 (Relevant

Conduct) unless a different meaning is specified or is otherwise clear from the

context.” U.S.S.G. § 1B1.1 cmt. 1(I). No other meaning is apparent in the other

applicable Guidelines provisions, so this definition controls. See id. §§ 2B1.1,

2K1.4. Logsdon’s “offense of conviction” falls under 18 U.S.C. § 1001 which, as

relevant here, criminalizes “mak[ing] any materially false, fictitious, or fraudulent

statement or representation” in a “matter within the jurisdiction of the executive . . .

branch.” 18 U.S.C. § 1001(a)(2) (emphasis added). Relevant conduct includes, in

part, (1) “all acts and omissions committed, aided, abetted, counseled, commanded,

induced, procured, or willfully caused by the defendant” and (2) “all harm that

resulted from the acts and omissions . . . and all harm that was the object of such acts

and omissions.” U.S.S.G. § 1B1.3(a). That means we consider the specific factual

circumstances surrounding Logsdon’s false statement for purposes of evaluating

whether her offense involved arson. See Witte v. United States, 515 U.S. 389, 393

(1995) (“Under the Sentencing Guidelines, the sentencing range for a particular

offense is determined on the basis of all ‘relevant conduct’ in which the defendant

was engaged and not just with regard to the conduct underlying the offense of

conviction.”). By using the word “offense,” Guidelines provisions like the one at

issue here instruct courts familiar with a case’s factual background to assess whether

the statutory crime, as committed by the defendant, implicates a given cross-

reference. See id.

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Next, the meaning of “arson” is not contested here. The district court found by

a preponderance of the evidence that the Mail-Mart fire was an arson. More

importantly, Logsdon does not challenge the district court’s conclusion that she knew

the fire was being investigated as an arson when Agent Stephens interviewed her and

she made the false statement charged in her indictment. See Oral Arg. at 7:47–8:00.

Finally, the Guidelines do not define the word “involved,” so we turn to its

plain meaning. See United States v. Archuleta, 865 F.3d 1280, 1287 (10th Cir. 2017).

As Logsdon points out, however, we have been down this road before. In United

States v. Montgomery, 468 F.3d 715 (10th Cir. 2006), we interpreted the word

“involving,” which appeared in a criminal statute imposing a mandatory minimum

sentence for “violation[s] . . . involving . . . 100 or more marihuana plants.” See 21

U.S.C. § 841(b)(1)(B)(vii). We see no reason to depart from the meaning of

“involving” we adopted in Montgomery.2

In Montgomery, DEA agents found ninety-nine marijuana plants in one room

of the defendant’s residence and two “mother plants” in another room. 468 F.3d at

717. Mother plants, we explained, are “mature marijuana plant[s] used to produce

clippings that are put in a fertilized solution in the hope that they will subsequently

sprout roots and become new marijuana plants.” Id. The offense charged in

2 The government acknowledges Montgomery, but devotes more of its brief to decisions interpreting the phrase “involved in.” We think such a focus is misplaced. The only difference between “involving” (Montgomery) and “involved” (this case) is verb tense. Both words share the same root. See Montgomery, 468 F.3d at 720 (“‘Involves’ or ‘involving’ are merely inflected forms of the word ‘involve’ and do not vary from the root in core meaning.”). 7 Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 8

Montgomery was possessing a controlled substance with intent to distribute, and

federal law imposed a mandatory minimum sentence for a “violation . . . involving

. . . 100 or more marihuana plants.” 21 U.S.C. § 841(b)(1)(B)(vii). The issue was

whether the defendant’s operation “involved” the two mother plants. That would

bring the total to 101 and trigger the mandatory minimum sentence.

We surveyed dictionary definitions and assessed the “common meaning” of the

word “involve” to reason that the mandatory minimum sentence applied “when the

predicate violation . . . has as a part or includes, 100 or more marijuana plants.”

Montgomery, 468 F.3d at 720 (emphasis added). The mother plants were “a part of”

the predicate distribution offense because, although they were not directly

distributed, the evidence suggested that they enabled the growth of plants that were

distributed. Id. at 721. We described the dynamic as akin to “but for” causation:

“[b]ut for the mother plants, some, if not all, of the 99 other plants would not exist

. . . [and] Montgomery would not have possessed with intent to distribute,

marijuana.” Id. All three elements of the relationship set out in the statute—the

predicate “violation,” the plants themselves, and the “involving” connector—were

critical to applying it to the facts of the case. The same is true here, and it leads us to

conclude that Logsdon’s material false statement in an arson investigation involved

arson.

The predicate term “offense,” defined broadly in the Guidelines as discussed

above, dictates the nature and range of the activities that we consider for arson

involvement. Under Montgomery, the “involved” connector complements this broad

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array of conduct by setting a relatively low bar for the level of arson connection that

is required to apply the cross-reference. It follows that an offense involves arson

under the Guidelines where it merely “has as a part or includes” arson. See id. at

720. Here, arson was “a part of” the false statement offense, within the meaning of

Montgomery, because Logsdon made her false statement to an arson investigator, and

it concerned her activities on the night of the arson under investigation. The

underlying arson was at the statement’s conceptual core. Just as the mother plants

were part of the statutory violation in Montgomery because they contributed to the

defendant’s criminal conduct, arson is part of the offense in this case because

Logsdon’s false statement can only be understood with reference to the ongoing

arson investigation it obstructed. Without the arson, the statement would not have

been made, let alone recorded, let alone prosecuted. The district court’s application

of the arson cross-reference was proper because arson was a critical part of

Logsdon’s 18 U.S.C. § 1001 offense.3

Reading the Guidelines together with 18 U.S.C. § 1001, we think almost every

false statement uttered to an arson investigator and successfully prosecuted

implicates the cross-reference. That is because the question of the cross-reference’s

application only arises at sentencing, once there is an underlying conviction for the

3 Logsdon’s offense “includes” arson—the other meaning of “involve” surveyed in Montgomery—for much the same reason. We have declined to hold that the word “involve” requires one thing to be literally included within another. See Scalia v. Wynnewood Ref. Co., LLC, 978 F.3d 1175, 1182 (10th Cir. 2020) (holding that a vessel need not “contain” a hazardous chemical to be part of a process “involving” a hazardous chemical). 9 Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 10

false statement. Under 18 U.S.C. § 1001, a prosecution for a false statement requires

the government to prove that the defendant’s falsehood was “material[]” in the

context of a “matter” within the federal government’s jurisdiction. Where that

“matter” is an arson investigation, such as the Mail-Mart inquiry conducted by Agent

Stephens, a conviction thus requires the false statement to have been material to the

arson investigation. If that is the case, we think the cross-reference naturally applies

to a defendant’s conduct. In other words, a false statement in an arson investigation

successfully prosecuted under § 1001 will typically involve arson because the

statement was necessarily material to the investigation of the arson. Here, for

example, Logsdon’s false statement materially misinformed Agent Stephens by

placing her in Mail-Mart on the night of the fire when she was in another city

entirely. Section 1001’s materiality requirement means that arson is almost always a

necessary part of a false statement in an arson investigation.

The analogy to “but for” causation from Montgomery is also instructive. In

that case, we counted mother plants toward the marijuana plant total because some or

all of the other ninety-nine plants could not have been grown without them. That

meant the offense involved the mother plants, even if they were not the particular

plants being possessed by the defendant with intent to distribute. The same is true

here, in terms of the relationship between the Mail-Mart arson and Logsdon’s false

statement. Logsdon’s false statement was only made because Agent Stephens was

investigating the cause of the Mail-Mart fire: arson. And Logsdon’s false statement

was only prosecuted under 18 U.S.C. § 1001 because it was material to a matter

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within the ATF’s jurisdiction: arson. Arson both launched the investigation in which

Logsdon made the false statement and, by rendering the statement material, sustained

Logsdon’s subsequent prosecution for making the statement. But for the underlying

arson, the statement would not have been made and the prosecution would not have

occurred. For these reasons, we hold that Logsdon’s false statement offense involved

arson and the district court correctly applied the arson cross-reference.

We reject Logsdon’s argument that the cross-reference only applies if she was

involved in committing arson. Logsdon cites to United States v. Johnson, where,

although the defendant was not convicted of arson, the Ninth Circuit concluded that

there was enough evidence to sustain the district court’s finding, for sentencing

purposes, that he had committed arson. 782 F. App’x 568, 570–71 (9th Cir. 2019)

(unpublished). Our decision today is not in tension with Johnson. That case simply

illustrates how a district court may validly consider whether a defendant was

involved in committing arson when evaluating the cross-reference’s application. In

other words, there is no requirement that a defendant commit arson for the cross-

reference to apply. Committing arson is sufficient, but not necessary, to invoke the

cross-reference. The same is true of advancing a material falsehood in an arson

investigation.

Finally, we reject Logsdon’s argument that the cross-reference cannot apply

here because her statement did not mention arson on its face. That contention is

inconsistent with the language of the Guidelines. Nothing in § 2B1.1 requires that a

false statement expressly reference arson. To apply the cross-reference, a statement

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must only “involve” arson. Viewing Logsdon’s conduct in context makes clear how

arson played a substantial part in her false statement.

IV.

For the reasons stated above, we AFFIRM the district court’s application of

the arson cross-reference to Logsdon’s sentence. As a result, we AFFIRM Logsdon’s

sentence and do not reach the second issue Logsdon presents concerning the scope of

remand.