PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JULIEANN LOGSDON, Defendant - Appellant. No. 19-7055

________________ _________________ 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 Bu rris, 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 susp ected arson, to a federal agent investigating th at arson. At sentencing, the district court applied a FILED United States Court of Appeals Tenth Circuit 

### February 28, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 12 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. Ex ercising 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 Tahleq uah, Oklahoma. On the morning of August 26, 2017, Sarah Hicks, an employee of Mail-Mar t, arrived to open the store and discovered that a fire had occurred. Hicks reported the fire and Tahlequah officials called in the Bur eau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). ATF Sp ecial Agent Ashley Stephens determined that the fire was an arson and opened an investigation. All Mail-Mart employees, including Ju lieann Logsdon, were interviewed as part of the investigation. At the star t 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 th e interview. She to ld 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 ha ve her debit card. Sh e claimed that they drove back to Tahlequah to look for th e card, first unsuccessfully searching her home, and then checking Mail-Mart. Sh e estimated arriving at Mail-Mart around 9:00 p.m. and said she reset the alarm before leaving. Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 23 Investigators disproved Logsdon’s st ory when they compared Mail-Mart’s alarm records with he r cell phone records. The alar m records revealed that MailMart’s alarm was deactivated at 9:33 p.m. But Logsd on’s phone records placed her in the Tulsa area at ar ound 9:45 p.m., when the owner of Mail-Mart called her. Tulsa is over sixty miles from Tahleq uah, 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 Sept ember 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 origin al narrative by stating that the alarm might not have b eeped when she went into Mail-Mart. L ogsdon avoided further questioning about the alar m and requested an attorney. On February 13, 2019, Logsdon was ch arged with making a false statement in violation of 18 U.S.C. § 1001. Her indictment stated th at she “claim[ed] she entered the Mail[-]Mart and turned o ff the alarm, at a specific date and time,” when she “knew” that “she did not enter the Mail[-]Ma rt and did not turn off the alarm at that time.” App’x Vol. I at 9. Logsdon ente red 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 offens e level at 24 after appl ying a Federal Sentencing Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 34 Guidelines (“Guidelines”) cr oss-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 accepta nce of responsibility, th e PSR reduced Logsdon’s offense level to 21 and calculated a Gu idelines range of 37–46 months of imprisonment. Logsdon moved for a variance, which the district court partially granted. The court sentenced her to ei ghteen months of imprisonment followed by two years of supe rvised release. 1 At the sentencing heari ng, the court upheld the application of the arson cro ss-reference in the PSR, explai ning that the Mail-Mart fire “was an arson, [and Logsdon] knew it was be ing investigated as an arson at the time she made her false statemen t.” App’x Vol. I at 75. Logsdon appeals the application of the cross-reference. She argues that her false statement offense did not involve ars on because there was no evidence tying her to the arson under investigation and her st atement did not mention, let alone cause, arson. If we agree that the cross-refere nce was improperly app lied, she argues that the government should be barred from intr oducing new evidence on remand. We do not reach that issue because we affirm the application of th e cross-reference and, with it, Logsdon’s sentence.

1 Although Logsdon is no longer incarce rated, her superv ised release is ongoing, so this appeal is not moot. See United States v. Montgomery , 550 F.3d 1229, 1231 n.1 (10th Cir. 2008). Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 45 II. The applicable provision of the Guidelin es for a violation of 18 U.S.C. § 1001 is § 2B1.1. It instructs courts to apply a cross-refe rence 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-re ference does not apply to her false statement in the Mail-Mart investigation b ecause she did not men tion arson and there was no evidence that she was i nvolved in the arson under inve stigation. She asks us to hold that making a false st atement during an arson inves tigation is insufficient to trigger the cross-reference. To assess th ese 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 Se ntencing Guidelines according to accepted rules of statutor y construction.” United States v. Sweargin , 935 F.3d 1116, 1120 (10th Cir. 2019) (quoting United States v. Robertson , 350 F.3d 1109, 11 12 (10th Cir. 2003)). “When interpreting a guideline, we look not only to the language in the guideline itself, but also to the Se ntencing Commission’s interpretive and explanatory commentary to the guideline.” Id. at 1120–21.
III. To assess whether the district court pr operly applied the arson cross-reference, we will consider what ea ch word in the provision that invokes it—“offense,” “involved,” and “arson”—means in light of the Guidelines, our jurisprudence, and Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 56 Logsdon’s false statement offense. Th e Guidelines’ commentary defines “offense” as “the offense of convic tion and all releva nt conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is sp ecified or is otherwise clear from the context.” U.S.S.G. § 1B1.1 cmt. 1(I). No other meaning is a pparent 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, crimin alizes “mak[ing] any materially false, fictitious , or fraudulent statement or representation” in a “matter within the jurisd iction of the executive . . . branch.” 18 U.S.C. § 1001(a)(2) (emphasis added). Relevant conduct includes, in part, (1) “all acts and omi ssions committed, aided, abe tted, counseled, commanded, induced, procured, or willfully caused by the defendant” and (2) “all harm that resulted from the acts and omi ssions . . . 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 fals e 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 conduc t’ in which the defendant was engaged and not just w ith regard to the conduct un derlying the offense of conviction.”). By using the word “offens e,” Guidelines provisi ons like the one at issue here instruct courts fa miliar with a case’s factua l background to assess whether the statutory crime, as committed by th e defendant, implicates a given crossreference. See id. Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 67 Next, the meaning of “arson” is not contested here. The district court found by a preponderance of the eviden ce 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 ars on 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 th e 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 mo re marihuana plants.” See 21 U.S.C. § 841(b)(1)(B)(vii). We see no re ason 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 “mothe r plants” in another room. 468 F.3d at 717. Mother plants, we e xplained, are “mature marijuan a 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 phras e “involved in.” We think su ch 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’ ar e merely inflected forms of the word ‘involve’ and do not vary from the root in core meaning.”). Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 78 Montgomery was possessing a controlled substance with intent to distribute, and federal law imposed a mandatory minimum sentence for a “viola tion . . . involving . . . 100 or more marihuana plants.” 21 U.S.C. § 841(b)(1)(B)(vii). The issue was whether the defendant’s opera tion “involved” the two moth er plants. That would bring the total to 101 and trigger the mandatory minimum sentence. We surveyed dictionary definitions a nd assessed the “comm on meaning” of the word “involve” to reason that the mandato ry 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 becau se, although they were not directly distributed, the evidence suggest ed that they enabled the gr owth 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 inte nt to distribute, marijuana.” Id. All three elements of the relationship set out in the statute—the predicate “violation,” the plants themse lves, and the “involving” connector—were critical to applying it to the f acts of the case. Th e same is true here , and it leads us to conclude that Logsdon’s material false stat ement in an arson investigation involved

arson. The predicate term “offense,” defined br oadly in the Guidelines as discussed above, dictates the nature and range of th e activities that we consider for arson involvement. Under Montgomery , the “involved” connector complements this broad Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 89 array of conduct by setting a re latively low bar for the leve l 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 offe nse, within the meaning of Montgomery , because Logsdon made her false stat ement to an arson investigator, and it concerned her activities on the night of the arson under investigation. The underlying arson was at the st atement’s conceptual core. Just as the mother plants were part of the st atutory violation in Montgomery because they contributed to the defendant’s criminal conduct, arson is part of the o ffense in this case because Logsdon’s false statement can only be understood with reference to the ongoing arson investigation it obstruc ted. Without the arson, th e statement would not have been made, let alone recorded, let alone pros ecuted. 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 i nvestigator and successfully prosecuted implicates the cross-reference. That is because the quest ion of the cross-reference’s application only arises at se ntencing, once there is an un derlying conviction for the

3 Logsdon’s offense “includes” ar son—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 (10t h Cir. 2020) (holding that a vessel need not “contain” a hazar dous chemical to be part of a process “involving” a hazardous chemical). Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 910 false statement. Under 18 U.S.C. § 1001, a prosecution for a false statement requires the government to prove that the defenda nt’s falsehood was “material[]” in the context of a “matter” with in the federal government’s jurisdiction. Where that “matter” is an arson inves tigation, such as the Mail-Ma rt inquiry conducted by Agent Stephens, a conviction t hus requires the false st atement to have been material to the arson investigation. If that is the case, we think the cro ss-reference naturally applies to a defendant’s conduct. In other words, a false statemen t in an arson investigation successfully prosecuted under § 1001 will typically involve arson because the

statement was necessar ily material to the investiga tion of the ars on. Here, for example, Logsdon’s false statement mate rially misinformed Agent Stephens by placing her in Mail-Mart on the night of th e fire when she was in another city entirely. Section 1001’s materiality requireme nt means that arson is almost always a necessary part of a false statem ent 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 in tent 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 wa s only made because Agent Stephens was investigating the cause of the Mail-Mart fi re: arson. And Logs don’s false statement was only prosecuted under 18 U.S.C. § 1001 because it was material to a matter Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 1011 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 prosecu tion for making the statemen t. 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 fals e statement offense involved arson and the district court correctly applied the arson cross-reference. We reject Logsdon’s argumen t that the cross-referenc e 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 Ni nth Circuit concluded that there was enough evidence to sustain the district cour t’s finding, for sentencing purposes, that he had committed arson. 782 F. App’x 568, 570–7 1 (9th Cir. 2019) (unpublished). Our decision t oday 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 re quirement that a defendant commit arson for the crossreference to apply. Committing arson is su fficient, but not neces sary, to invoke the cross-reference. The same is true of a dvancing a material fa lsehood in an arson investigation. Finally, we reject Logsdon’s argument th at the cross-reference cannot apply here because her statement did not mentio n arson on its face. That contention is inconsistent with the language of the Guidel ines. Nothing in § 2B1.1 requires that a false statement expressly refe rence arson. To apply the cross-reference, a statement Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 1112 must only “involve” arson. Viewing Logsdon’s conduct in context makes clear how arson played a substantial pa rt 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 re sult, we AFFIRM Logsdon’s sentence and do not reach th e second issue Logsdon presen ts concerning the scope of remand. Appellate Case: 19-7055 Document: 010110650276 Date Filed: 02/28/2022 Page: 12