In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3849

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEVIN M. JOHNSON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 05 CR 30011—Jeanne E. Scott, Judge.

____________

ARGUED MAY 23, 2007—DECIDED AUGUST 15, 2007

____________

Before EASTERBROOK, Chief Judge, and BAUER and

MANION, Circuit Judges.

BAUER, Circuit Judge. Kevin Johnson pleaded guilty

to conspiring with others to manufacture and to distribute 50 or more grams of methamphetamine or more

than 500 grams of a substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The

district court sentenced Johnson to 220 months’ imprisonment. Johnson appeals his sentence, arguing that the

district court erred in finding that his confrontation of

a confidential informant prior to his sentencing hearing reflected his intent to obstruct justice and disqualified him from being eligible for the sentencing guideline’s “safety valve” provision. We affirm.
2 No. 06-3849

I. Background

From September 30, 2003 through January 14, 2004,

Johnson and at least seven of his drug associates manufactured and distributed approximately 2,500 grams of a

substance containing methamphetamine in Taylorville,

Illinois. Johnson was arrested in possession of marijuana

and 7.5 grams of methamphetamine on January 15, 2004.

In March of 2004, a number of Johnson’s drug associates,

including Julia Raymond, began cooperating with law

enforcement agents, implicating themselves and Johnson

in the conspiracy. On March 23, 2004, Raymond told

investigating agents that Johnson had cooked methamphetamine during late 2001 and that, over a four-month

period, Johnson had sold two to three grams of methamphetamine to two different men four times a week.

On March 22, 2006, Johnson pleaded guilty to both

counts of the indictment and was free on bond pending

sentencing. The probation officer completed and issued

Johnson’s presentence investigation report (PSR) on

May 26, 2006. The PSR included the information provided by Raymond, who was referred to as a confidential

source in the PSR. Shortly after it was issued, Johnson

read the PSR and determined that one of the confidential

sources listed therein was Raymond. At the time, Johnson

and Raymond were both working for the same employer.

Johnson worked as a machine operator in one building,

and Raymond worked as an assembler in another building located on the same site.

On June 1, 2006, Johnson left his work area and approached Raymond at her work station. According to

Johnson, he approached Raymond because he wanted to

ask her why she had lied to law enforcement agents

about him. Raymond denied talking to any investigators

about him. Johnson then said, “Don’t lie to me, Julia . . . .

I have accepted responsibility for my actions but now you
No. 06-3849 3

1 Raymond later testified that she falsely reported some of the

facts surrounding the incident to her employer because she did

not want her employer to know that she had previously used

drugs and had been involved with a group of people including

Johnson.

are going to have to live with what you [did].” Both parties admit that the conversation became heated after

Raymond told Johnson that her cousin, a retired police

officer, had told her to let him know if Johnson ever

bothered her. Johnson told Raymond that he was going

to do his time in jail just as she should have to do her

time and that she was no better than anyone else. Raymond responded that she was going to call her cousin

and have him straighten Johnson out. Johnson then

directed profanities at Raymond and walked away.

Following the incident, Raymond told her work supervisor that Johnson had approached her and kicked a crate

near where she was working to get her attention. She

claimed that Johnson confronted her claiming that her

cousin had busted him for cooking methamphetamine.1

She also said that Johnson had directed profanities at

both her and her cousin. Later that day, Raymond contacted her cousin, who told her to contact Jeff Brown, a

lieutenant with the Christian County Sheriff’s Office.

On June 6, 2006, Raymond contacted Officer Brown and

told him that Johnson had confronted her about statements that she had made to law enforcement and had

accused her of lying to the investigators. She also claimed

that during the encounter Johnson told her that he had “a

gun and three bullets and if one bullet doesn’t do the job,

one of the other two will”.

After learning about Johnson’s conduct, the probation

officer determined that Johnson had violated the terms of

his pretrial release by threatening or intimidating Ray-
4 No. 06-3849

mond and therefore revised Johnson’s PSR. The PSR found

that Johnson should be held accountable for 2.66 kilograms of a substance containing methamphetamine, which

subjected him to a base offense level of 34. It also determined that Johnson’s conduct during the conspiracy had

created a substantial risk of harm to human life and the

environment, which resulted in a three-level enhancement under U.S.S.G. § 2D1.1(b)(6)(B). And, stating that

Johnson had threatened or intimidated Raymond, the

PSR recommended applying a two-level enhancement

pursuant to U.S.S.G. § 3C1.1, for attempted obstruction of

justice and denying a reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Finally, the PSR

found that Johnson’s intimidation of Raymond constituted

a credible threat of violence, and therefore, Johnson did

not qualify for the safety valve provision of U.S.S.G.

§ 5C1.2. Accordingly, the PSR calculated that the resulting guidelines sentencing range for Johnson, who had a

category one criminal history and an offense level of 39,

was 262 to 327 months.

Johnson objected to the PSR, challenging its findings

that he qualified for the obstruction of justice sentencing

enhancement and that he did not qualify for the safety

valve and acceptance of responsibility reductions. He

argued that his behavior towards Raymond on June 1 was

neither threatening nor intimidating and that he did not

attempt to obstruct or impede justice by approaching

Raymond.

At Johnson’s sentencing hearing, the Judge listened

to the testimony of Johnson, Raymond, their work supervisors, and human resource officers who had information

concerning the June 1 encounter, as well as Officer Brown.

After listening to the witnesses, the Judge decided not

to credit Raymond’s claim that Johnson had told her

that he had a “gun and three bullets”, explaining that

she did not feel the evidence was strong enough to base
No. 06-3849 5

a finding on those purported statements. However, she did

find that Johnson had threatened and attempted to

intimidate Raymond when he kicked a crate to get her

attention, asked her why she had lied, told her “now you

are going to have to live with what you have done,” and

directed profanities at her. The Judge also found that

this act was done to impede the administration of justice.

The district court agreed with the recommendations

of the PSR and found Johnson’s sentencing guidelines

range to be 262 to 327 months. In determining Johnson’s

sentence, the district court first considered the relevant

18 U.S.C. § 3553(a) factors. The district court noted that

a sentence within the advisory guidelines range would

result in an unwarranted disparity when compared to

the sentences received by defendants in related cases and

others involved in the conspiracy. The Judge concluded

that a sentence of 230 months would be appropriate to

avoid the disparity. Because Johnson had already served

a ten-month sentence in a related state court case, the

court reduced his sentence by ten months and sentenced

Johnson to 220 months’ imprisonment. This timely appeal followed.

II. Discussion

A. Obstruction of Justice Enhancement

Johnson first challenges the district court’s decision to

enhance his sentence for obstructing justice. We review

de novo whether the district court made the appropriate

findings to support an obstruction of justice enhancement

and review the factual findings underlying this determination for clear error. United States v. Sheikh, 367 F.3d

683, 686 (7th Cir. 2004).

Under § 3C1.1 of the sentencing guidelines, a defendant’s offense level should be enhanced by two levels
6 No. 06-3849

if “the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of

justice during the course of the investigation, prosecution,

or sentencing of the instant offense of conviction.” A threat

to a potential witness is sufficient to warrant an obstruction of justice enhancement, where the statement was

intended to threaten, intimidate, or otherwise unlawfully

influence that person. United States v. Johnson, 46 F.3d

636, 638 (7th Cir. 1995) (citations omitted); U.S.S.G.

§ 3C1.1, comment (n. 4).

Johnson contends that his encounter with Raymond

was insufficient to establish that he had attempted to

obstruct justice. He claims that he neither threatened

nor intended to threaten Raymond on June 1. The determination of what Johnson intended is a question of fact.

See United States v. Saunders, 166 F.3d 907, 912 (7th Cir.

1999) (noting that whether a defendant’s statement

constituted a threat is an issue of fact). The district court

found that Johnson had attempted to intimidate Raymond, stating:

[t]he context of the way he approached her, the fact

that he approached her at all . . . conveyed to her that

he knew she was a [confidential] source, conveyed to

her that he thought she was a liar, and ended with a

comment you’re going to have to live with what you’ve

done would, I think, be conceived as a threat or intimidation by anyone looking at this objectively. . . .

I think his statements are . . . an effort to intimidate

a potential witness that he knew was a potential

witness for sentencing because of the release of the

Pre-Sentence Report.

We agree. The timing, setting, and context of Johnson’s

confrontation of Raymond supports the finding that he

was attempting to threaten or intimidate her. This finding was not clearly erroneous, and the district court did
No. 06-3849 7

not err by enhancing Johnson’s sentence two levels

pursuant to the obstruction of justice enhancement.

B. Safety Valve Provision

Johnson also challenges the district court’s determination that he did not qualify for the safety valve provision.

The safety valve allows the district court to depart below

the statutory mandatory minimum sentence for certain

drug offenses. See U.S.S.G. § 5C1.2; 18 U.S.C. § 3553(f).

Johnson contends that he qualified for an offense-level

reduction pursuant to U.S.S.G. § 2D1.1(b)(9), which

provides for a two-level reduction if the defendant

satisfies the five criteria set forth in § 5C1.2(a). The

district Judge refused to apply the safety valve reduction

because she found that Johnson had failed to satisfy

§ 5C1.2(a)(2). The second criteria under § 5C1.2(a) provides that the safety valve provision only applies if the

“defendant did not use violence or credible threats of

violence . . . in connection with the offense.”

We review the district court’s findings about the factual predicates for the safety valve reduction for clear

error. See United States v. Harrison, 431 F.3d 1007 (7th

Cir. 2005) (citing United States v. Williams, 202 F.3d 959,

964 (7th Cir. 2000)). Because we find no error in the

district court’s determination that Johnson’s confrontation of Raymond on June 1 constituted a credible threat of

violence, we conclude that the she did not err in ruling

that Johnson was ineligible to receive a two-level reduction pursuant to the safety valve provision.

III. Conclusion

For the foregoing reasons, the sentence imposed is

AFFIRMED.
8 No. 06-3849

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-15-07