In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3247
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C RAIG L. JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-CR-253—Rudolph T. Randa, Judge.
A RGUED M ARCH 29, 2010—D ECIDED JULY 16, 2010
Before
C UDAHY and K ANNE, Circuit Judges, and
D ARRAH, District Judge.
D ARRAH, District Judge. On September 23, 2008, Defen-
dant-Appellant Craig L. Johnson was charged in a
one-count indictment with being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). The case proceeded to trial before a jury.
Honorable John W. Darrah, United States District Judge
for the Northern District of Illinois, is sitting by designation.
2 No. 09-3247
Because the parties stipulated that Johnson had previ-
ously been convicted of a felony, the only issue for the
jury to decide was whether or not Johnson was in pos-
session of a gun that had traveled in interstate com-
merce. Milwaukee Police Officers testified that Johnson
was asked during a traffic stop whether he had any-
thing on his person and that Johnson told them he had
a gun in his pocket. The officers then found a gun in
Johnson’s front pants pocket and arrested him.
Johnson took the stand in his own defense. On direct
examination, Johnson denied having a gun—or even
seeing a gun—on the day of his arrest and stated that
the first time he had seen the gun was at trial. Also on
direct examination, Johnson affirmed his prior felony
convictions, testifying as follows: “Uhm, summer ‘98, ‘99,
getting high, drugs, sharing drugs with this female
friend of mine. Got a possession charge, party to a
crime, possession with intent because I admitted to
sharing drugs. . . . Party to the crime of possession. And
the second crime was in 2002. I bought a gun. . . . felon
in possession of a gun.” (Trial Tr. III 8:13-9:1.) When
asked on cross-examination why he bought a gun,
Johnson said, “I mean, it was an old army gun. It was a
United States army gun. It was, it was real old. I mean—.
I thought it was worth something. 1911 was the date on
it.” (Trial Tr. III 27:19-21.)
The jury found Johnson guilty. After trial, the
Presentence Investigation Report (“PSR”) determined
that Johnson’s testimony at trial that he did not have a
gun on his person was false and that Johnson had
No. 09-3247 3
falsely denied having a gun in his pocket when he was
interviewed by a Milwaukee Police Detective the day
after his arrest. (PSR ¶¶ 7, 9.) The PSR also determined
that Johnson falsely testified about his prior weapons
felony—by characterizing the weapon as an “antique
gun”—and about his prior felony drug conviction—by
saying it was the result of his sharing drugs with his
friends. (PSR ¶ 8.) The PSR recommended a two-
level increase for obstruction of justice, concluding that
“[t]he defendant testified falsely at trial regarding the
charged offense as well as the circumstances sur-
rounding his prior convictions as noted above,” that
Johnson’s “testimony at trial was in direct contrast with
the testimony of the arresting officers, that “he falsely
testified regarding the circumstances of his prior ar-
rests,” and that he “attempted to obstruct his prosecu-
tion with his false statements, which were in relation to
his offense of conviction.” (PSR ¶¶ 11, 18.)
The criminal history category as calculated in the PSR
was IV, based on eight criminal history points: three for
each of his two prior felony convictions and two for
committing the instant offense while on supervised
release for the earlier felon-in-possession crime. Citing
section 4A1.3 of the Sentencing Guidelines, the PSR also
noted that an upward departure may be warranted.
On August 31, 2009, Johnson appeared before the
district court for sentencing. His sole objection to the
PSR was to the obstruction enhancement pursuant to
U.S.S.G. § 3C1.1. The district court’s pertinent discussion
of the issue of a two-level increase for obstruction of
justice was as follows:
4 No. 09-3247
Well, relative to the objection, the Court obviously
listened to the testimony. And when the Defendant
was arrested he was asked, of course, according to
the testimony of the Officers, whether or not he had
anything that he shouldn’t have. Said he had a gun
in his pocket, which was later denied. And then, of
course, we went to trial on that issue. And the
Officers only testified that they took the weapon
from the pocket, so the jury believed that testimony.
That’s where it was found. But—so one could say
that that is just a defense. That is the Defendant’s
story. The Court views the testimony, however, as
an extraordinary effort to minimize every type of
involvement of the Defendant with this offense rela-
tive to his prior felony drug convictions. Of the
sharing drugs. The Court has read the records, and
it’s not the case. And in addition, styling, the auto-
matic, the Colt .45 1911, was issued in 1911. The
Court is intimately familiar with the history of
the Colt .45 . . . . it is not an antique. It is still a func-
tioning, very dangerous weapon. So to minimize
that is also something—in combination with that,
the drug history, in the context of the defense in this
case, which goes beyond the defense in this case to
what the Court views as a mistruth—the Court is
going to allow that presentence report to stand as it is.
(Sentencing Tr. 4:12-5:15.) The judge then stated that he
would “proceed to sentencing with the sentencing guide-
lines that are established by that” and would “incorporate
that into the standards set forth in 18 United States
Code Section 3553.” (Sentencing Tr. 5:16-19.)
No. 09-3247 5
After then hearing arguments from the Government
and from Johnson’s counsel, the district court discussed,
among other things, Johnson’s criminal history category:
I think your attorney has made a good argument, and
has put you in the best light that he possibly can.
But I see the facts differently than he does. And as a
result I think this criminal history is under-repre-
sented. And the criminal history category should be
at a higher level. And I’m going to make that finding
here, that it should be at least around a category 5,
instead of a 4. I think it was a 4 at first. The criminal
history category should be higher, and the Court
is going to find that it is, given the analysis that the
Court just conducted.
(Sentencing Tr. 23:16-25.)
The Government recommended 72 months’ imprison-
ment. Johnson’s counsel recommended 63 months. The
Court imposed a sentence of 96 months to be served
consecutively to an 11-month sentence previously
imposed by another judge based on a revocation of John-
son’s supervised release on another, unrelated offense.
A 96-month sentence is at the top of the guideline
range based on a criminal history category of V.
Johnson appeals his sentence, arguing (1) that the dis-
trict court erroneously applied an obstruction enhancement
without making the necessary findings and (2) that the
court committed significant procedural and structural
errors by increasing his criminal history category, making
his sentence consecutive, and failing to ask Johnson and
his counsel whether they had read the PSR.
6 No. 09-3247
DISCUSSION
In reviewing a sentence, it must first be determined
whether the district court committed any procedural
error, such as improperly calculating the guideline range,
failing to adequately explain the sentence imposed,
treating the Guidelines as mandatory, or failing to
consider the factors set forth in § 3553(a). Gall v. United
States, 552 U.S. 38, 51 (2007) (Gall). The district court’s
interpretation of the Sentencing Guidelines, as well as its
application of the Guidelines to the facts, is reviewed
de novo. United States v. Abbas, 560 F.3d 660, 662 (7th Cir.
2009) (citations omitted). Factual findings are reviewed
for clear error. United States v. Singh, 483 F.3d 489, 496
(7th Cir. 2007) (citing United States v. Ellis, 440 F.3d
434 (7th Cir. 2006)).
If the sentence is procedurally sound, it is then reviewed
for substantive reasonableness under an abuse-of-discre-
tion standard. United States v. Are, 590 F.3d 499, 530
(7th Cir. 2009) (citing Gall, 552 U.S. at 51; United States
v. Scott, 555 F.3d 605, 608 (7th Cir. 2009)).
Obstruction of Justice
Section 3C1.1 of the Sentencing Guidelines provides for
a two-level enhancement if “the defendant willfully
obstructed or impeded, or attempted to obstruct or im-
pede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant
offense of conviction.” U.S.S.G. § 3C1.1(A) (2009). Com-
mitting perjury is specifically listed as an example of
No. 09-3247 7
conduct that warrants such an enhancement. See U.S.S.G.
§ 3C1.1 Application Note 4(b).
To apply an enhancement on the basis that the
defendant perjured himself, the district court should
make a finding as to all of the factual predicates neces-
sary for a finding of perjury: false testimony, materiality,
and willful intent. United States v. Seward, 272 F.3d 831,
838 (7th Cir. 2001) (Seward) (citing United States v.
Dunnigan, 507 U.S. 87, 95 (1993) (Dunnigan)). Although it
is preferable to have the district court address each
element of the alleged perjury in a clear and separate
finding, “separate findings are not strictly necessary so
long as the court determined that the defendant lied to
the judge and jury about matters crucial to the question
of the defendant’s guilt.” United States v. White, 240 F.3d
656, 662 (7th Cir. 2001) (White) (citing United States v.
Hickok, 77 F.3d 992, 1008 (7th Cir. 1996) (Hickok)). To
lie, after all, is “to present false information with the
intention of deceiving,” American Heritage Dictionary
of the English Language (4th ed. 2009)—a definition
which encompasses two of the three elements of perjury.
If the lie occurs under oath and concerns a material
issue, it is perjury.
This court has upheld obstruction enhancements in the
absence of clear, individualized findings as to each
element of perjury. In White, eight witnesses testified
that the defendant, White, knowingly and actively par-
ticipated in an insurance-fraud scheme. 240 F.3d at 659.
In the face of this evidence, White took the stand in
his own defense and denied any involvement in the
8 No. 09-3247
scheme. Id. White was convicted by a jury, and the case
proceeded to sentencing. Id. The PSR recommended a
two-level upward adjustment for obstruction of justice.
Id. at 659-60. The sentencing judge applied the enhance-
ment, stating, “[D]espite everything Mr. White said
about being high and doing all this, he wasn’t high when
he testified, he knew exactly what he was saying when
he testified, and he was committing perjury, and I think
that the two-point enhancement is appropriate in this
case.” Id. at 660.
On appeal, White argued that the district court failed
to make a finding regarding White’s intent and failed
to identify each specific statement that constituted
perjury. Id. at 661. The district court’s findings were held
to be sufficient because it was evident from the sen-
tencing transcript “that the court determined that White
knew what he was saying and doing when he took
the stand and denied basic facts regarding his participa-
tion in the fraud.” Id. at 662. Also, the defendant “system-
atically and in a wholesale fashion contradicted the
eyewitness testimonies of eight witnesses concerning
every aspect of his participation in the insurance
fraud,” which made it unnecessary for the court “to
peruse the trial transcript to point out every instance
in which White perjured himself.” Id.
In United States v. Saunders, 359 F.3d 874, 876 (7th Cir.
2004) (Saunders), the defendant, Saunders, was involved
in an altercation with an acquaintance during which a
firearm was discharged. Saunders was charged as a
felon in possession of a firearm. Id. Several witnesses at
No. 09-3247 9
trial testified that Saunders had the gun in his posses-
sion moments before and after the altercation. Id. at
876-77. Nonetheless, Saunders took the stand in his own
defense and testified that he never possessed the gun,
that a hard object had been placed in his back during
the struggle, and that the two men slipped in the snow
and ended up with both of their hands and the gun in
Saunders’s pocket when the gun went off. Id. at 877. The
district court applied the two-level, obstruction-of-
justice enhancement, finding that Saunders told “a lie
which no one would believe.” Id. at 879. Although the
court’s findings were held to be “too skimpy,” the error
in that particular case was harmless because the record
showed that the district court found Saunders’s version
incredible. Id.
Thus, although the district courts in White and Saunders
did not provide specific, separate findings as to the
falsity, intent, and materiality of specific statements, the
sentencing judges in both cases created a record that
allowed this court to determine that each court specif-
ically found the defendant lied about a material issue.
See also United States v. Savage, 505 F.3d 754, 763-64 (7th
Cir. 2007) (holding district court’s finding that defendant
“obstructed or attempted to obstruct justice” was “regret-
tably slim” but constituted harmless error in light of
clear record that defendant willfully lied about material
matters contradicted by government witnesses and defen-
dant’s own expert); United States v. Sheikh, 367 F.3d 683,
687 (7th Cir. 2004) (affirming obstruction enhancement
when the district court “specifically found that each
defendant lied about knowingly redeeming illegally
10 No. 09-3247
obtained food stamps, a matter that is certainly crucial
to each defendant’s guilt”); United States v. Brimley, 148
F.3d 819, 823-24 (7th Cir. 1998) (affirming obstruction
enhancement when the district court identified relevant
testimony, expressly found that it was false, noted that
it went to a critical issue in the case, and stated that it
“had no hint of believability”).
When it is not clear that the district court made the
appropriate findings, however, the sentence must be
vacated and remanded for resentencing. See, e.g., Seward,
272 F.3d at 838-39 (holding that district court’s “bare
holding that [defendant] was ‘being untruthful’ ” was
insufficient and made it nearly impossible for the court
to assess whether the error was harmless); United States
v. McGiffen, 267 F.3d 581, 591-92 (7th Cir. 2001) (holding
that findings were insufficient to support obstruction
enhancement when the district court merely stated,
“I thought your testimony was riddled with inac-
curacies and lies,” without identifying specific state-
ments or addressing the issues of materiality or intent).
“[W]henever a district judge is required to make a discre-
tionary ruling that is subject to appellate review, we
have to satisfy ourselves, before we can conclude that
the judge did not abuse his discretion, that he exercised
his discretion, that is, that he considered the factors
relevant to that exercise.” United States v. Cunningham,
429 F.3d 673, 679 (7th Cir. 2005).
In this case, it is undisputed that the district court
did not articulate clear and separate findings as to the
falsity, materiality, and intent of any statement made by
No. 09-3247 11
Johnson. Nor can the district judge’s comments be rea-
sonably construed as a general finding “that encompasses
all of the factual predicates for a finding of perjury.”
See White, 240 F.3d at 656 (quoting Dunnigan, 507 U.S.
at 95).
First, the judge did not clearly state his belief that
Johnson made a false statement; he merely noted that the
jury did not believe Johnson’s testimony. After noting
Johnson’s pretrial denial of having a gun in his pocket,
the district court said, “And the Officers only testified
that they took the weapon from the pocket, so the jury
believed that testimony. That’s where it was found.
But—so one could say that that is just a defense. That is
the Defendant’s story.” (Sentencing Tr. 4:17-21.) But an
obstruction enhancement is not warranted merely be-
cause the jury did not believe the defendant’s testimony;
the enhancement should only be applied if the court de-
termines that the defendant committed perjury. Seward,
272 F.3d at 838. The record contains no such determination.
The sentencing judge further obscured the basis for
his determination that Johnson committed perjury by
transitioning directly into a discussion about Johnson’s
prior felonies, stating, “The Court views the testimony,
however, as an extraordinary effort to minimize every
type of involvement of the Defendant with this offense
relative to his prior felony drug convictions.” (Sentencing
Tr. 4:21-24.) The judge then discussed the statements
Johnson made about his previous felony conviction,
making it unclear whether the court based its application
of the obstruction enhancement on the testimony about
12 No. 09-3247
the gun, the testimony about the prior offenses, or both.
The judge’s comments regarding defendant’s “effort
to minimize” his involvement with the offense of con-
viction further confuse the issue; an “effort to minimize”
something would not necessarily involve an inten-
tional, material, false statement.
Moreover, if the judge applied the perjury enhancement
based on Johnson’s testimony about his prior offenses,
those statements would not be material to the issue of
guilt at trial or to Johnson’s criminal history determina-
tion at the time of sentencing. A material statement is
one that “if believed, would tend to influence or affect
the issue under determination.” U.S.S.G. § 3C1.1 Applica-
tion Note 6; see also United States v. Parker, 25 F.3d 442,
449 (7th Cir. 1994) (holding that a false statement re-
garding defendant’s take in a robbery was not material
because it “was not ‘designed to substantially affect the
outcome of the case’ ”) (quoting Dunnigan, 507 U.S. at 95).
In this case, the only issue for determination by the
jury during the trial was whether Johnson was in posses-
sion of a firearm that had traveled in interstate com-
merce. Johnson had stipulated that he had twice been
convicted of a felony, and those convictions were not
relevant to the trial issue of his gun possession. Likewise,
Johnson’s testimony about his previous convictions is
immaterial as to his sentence because the stipulations
would have increased his criminal history category re-
gardless of his testimony.
On the record, it cannot be determined that the trial
court found that Johnson made a particular material
No. 09-3247 13
false statement with willful intent, sufficient to enhance
Johnson’s sentence for obstructing justice. Therefore, the
sentence must be vacated and remanded so the district
court can further consider the issue of perjury by Johnson
and make the appropriate findings if it determines an
obstruction enhancement is applicable in this case.
Other Asserted Procedural and Substantive Errors
Johnson also identifies what he considers to be “signifi-
cant procedural and substantive errors” committed by
the district court in entering an above-guideline sentence.
First, Johnson argues that the district court erroneously
relied on juvenile conduct and unrelated adult conduct
in contravention of the factors set forth in section 4A1.3(a)
of the Guidelines (providing for upward departures
based on inadequacy of criminal history category). Al-
though the judge did not specifically mention section
4A1.3(a) at sentencing, Johnson argues that the court
nonetheless relied on that section when it made a specific
“finding” that Johnson’s criminal history category was
under-represented and imposed a sentence above the
guideline range calculated in the PSR.
A sentencing proceeding should begin with a calcula-
tion of the applicable guidelines. Gall, 552 U.S. at 49.
After allowing both parties to argue for a particular
sentence, the sentencing judge should then consider all
of the mandatory § 3553(a) factors to determine whether
they support the requested sentence and “must ade-
quately explain the chosen sentence to allow for mean-
14 No. 09-3247
ingful appellate review and to promote the perception of
fair sentencing.” Id. at 50. Above-guideline sentences
must be supported with “compelling justifications.”
United States v. Gooden, 564 F.3d 887, 890-91 (7th Cir.
2009) (citation omitted).
Because the Guidelines are now advisory, a sen-
tencing court is not required to follow section 4A1.3 when
imposing an above-guideline sentence. United States v.
Jackson, 547 F.3d 786, 793 (7th Cir. 2008) (Jackson). Indeed,
after United States v. Booker, 543 U.S. 220 (2005), “our cases
have declared the concept of departures ‘obsolete’ and
‘beside the point.’ ” United States v. Walker, 447 F.3d 999,
1006 (7th Cir. 2006) (compiling cases); cf. United States v.
Turner, 569 F.3d 637, 640 (7th Cir. 2009) (noting that
whether to apply a downward departure under U.S.S.G.
§ 4A1.3 “is a discretionary decision that has nothing to
do with ‘correct’ Guidelines calculation” and is, thus, not
a procedural error but a substantive decision to be re-
viewed for reasonableness).
Thus, a district court may impose an above-guideline
sentence based on the factors set forth in § 3553(a)
without adherence to U.S.S.G. § 4A1.3. Further, “[j]udges
need not rehearse on the record all of the considerations
that 18 U.S.C. § 3553(a) lists; it is enough to calculate the
range accurately and explain why (if the sentence lies
outside it) this defendant deserves more or less.” United
States v. George, 403 F.3d 470, 472-73 (7th Cir. 2005).
Contrary to Johnson’s argument, it is not improper for a
district court to take a defendant’s juvenile conduct into
consideration at sentencing. Juvenile offenses may be
No. 09-3247 15
considered “as part of the larger picture, including as
evidence of a pattern of recidivism or criminal violence.”
United States v. Torres, 217 Fed. Appx. 540, 543 (7th Cir.
2007) (noting that such considerations were proper in
the pre-Booker era and that district judges now have
even more discretion) (citations omitted).
Although not bound by the Guidelines, district courts
may apply the departure guidelines “by way of analogy in
analyzing the section 3553(a) factors.” United States v.
Miranda, 505 F.3d 785, 792 (7th Cir. 2007) (citations omit-
ted). In Jackson, for example, this court upheld an above-
guideline sentence, finding that the judge’s comments
at sentencing “clearly indicated that he properly incorpo-
rated consideration of the § 4A1.3 policy statement into
his overall § 3553(a) analysis.” 547 F.3d at 793.
Here, however, the sentencing judge did not specif-
ically reference section 4A1.3 and did not indicate that
he was using that section by analogy in order to justify
an above-guideline sentence. Nor did the judge specif-
ically indicate that the sentence he imposed was a
variance from the guideline range computed in the PSR.
In his “Statement of Reasons,” the judge determined the
advisory guideline range (before departures) based on a
criminal history category of V—not IV, as calculated in
the PSR—and indicated he was imposing a sentence
within the advisory guideline range. The court also
stated as follows:
The defendant’s criminal history is under-represented.
The Court found the defendant’s criminal history is
more appropriate as V due to offenses in which the
16 No. 09-3247
defendant was arrested but there was no prosecution
or prosecution was declined. The defendant has
repeatedly lied and is unsuccessful on community
based supervision. Defendant admits he is not
supervisable.
(Statement of Reasons § VIII.)
In sum, the judge imposed a term of imprisonment
based on a higher guideline range than that which was
calculated in the PSR—without explaining how he
arrived at a higher range and in spite of his statement
that he was proceeding to sentencing based on the
PSR’s calculations. Although the record reveals that the
sentencing judge believed Johnson’s criminal history
category was under-represented, it is unclear as to how
that finding was used to calculate Johnson’s sentence.
Because the record does not reveal an adequate explana-
tion of the chosen sentence, Johnson’s sentence must be
reversed.
Second, Johnson claims the district court committed
a substantive error by imposing Johnson’s sentence
consecutively to an undischarged term of imprisonment
from a sentence imposed by another judge in another
case. However, the record does not reflect that Johnson
specifically requested a concurrent sentence or objected
to a consecutive sentence at any time before or after the
sentencing judge announced that Johnson’s sentences
would run consecutively. Indeed, Johnson’s attorney
conceded at oral argument that the plain-error standard
“would probably apply in this case.” Thus, we review
only for plain error. See United States v. Brassell, 49 F.3d
No. 09-3247 17
274, 277 (7th Cir. 1995) (“Because [defendant] made no
objection at the time of sentencing, review is limited to
the standard of plain error.”). Only if the error both is
clear and obvious and affected the outcome of the
court proceedings should the sentence be disturbed.
United States v. Olano, 507 U.S. 725, 732-36 (1993).
Here, there is no plain error in the district court’s deci-
sion to sentence Johnson to a term of imprisonment
that would run consecutively to the undischarged term
he was serving based on the revocation of his super-
vised release. When a defendant was on supervised
release at the time he committed the offense and his
supervised release is revoked, the Guidelines provide
that “the sentence for the instant offense may be
imposed to run concurrently, partially concurrently, or
consecutively to the prior undischarged term of impris-
onment to achieve a reasonable punishment for the
instant offense.” U.S.S.G. § 5G1.3(c) & Application Note
3(C); see also United States v. Jackson, 546 F.3d 465, 469
(7th Cir. 2008). The Sentencing Commission recommends
that the sentence for the instant offense be imposed
consecutively to the sentence imposed for the revoca-
tion. U.S.S.G. § 5G1.3, Application Note 3(C).
In imposing Johnson’s sentence, the judge stated,
“Mr. Lipscomb [the Assistant United States Attorney]
indicated that the sentence was probably on the light
side, and he was correct. So the Court is going to impose
a sentence of 96 months, but it’s going to be consecutive
to case 02-CR-128. That’s the decision that Judge Charles
Clevert entered on the revocation.” (Sentencing Tr. 24:1-5.)
18 No. 09-3247
The district court acted within its discretion and
followed the recommendation set forth in the Guidelines.
A consecutive sentence was not an abuse of discretion.
Johnson’s final argument on appeal is that the district
court erred by failing to ask Johnson whether he had
read the PSR. Federal Rule of Criminal Procedure 32
provides that the sentencing court “must verify that the
defendant and the defendant’s attorney have read
and discussed the presentence report and any ad-
dendum to the report.” Fed. R. Crim. P. 32(i)(1)(A); see also
United States v. Rone, 743 F.2d 1169, 1174 (7th Cir. 1984)
(Rone) (“The district court at the sentencing hearing
need directly ask the defendant only three questions—
whether he or she has had an opportunity to read the
report, whether the defendant and defense counsel
have discussed the report and whether the defendant
wishes to challenge any facts in the report.”).
The sentencing transcript reveals that the district court
did not ask the defendant whether he read the PSR. But it
does reveal that the defendant had read it. During his
statement in allocution, Johnson stated, “But in the
presentence report, every time she—Probation Depart-
ment lady—every time she address the issue that I had
with authority, she pointed out one thing that I believe
was factual. The other, I looked at it as wow, she’s
painting a cruel picture of me here. But the thing she
pointed out that was the truth was the fact that I don’t
like the Police.” (Sentencing Tr. 15:1-7.)
Thus, any error regarding the court’s failure to
comply with Federal Rule of Criminal Procedure 32 was
harmless.
No. 09-3247 19
CONCLUSION
For the reasons discussed above, Johnson must be
resentenced. Johnson requests that we apply Circuit
Rule 36 on remand and re-assign the case to another
judge. The request is denied. The sentencing judge pre-
sided over Johnson’s criminal trial. Here, where the PSR
recommends an enhancement for perjury based on trial
testimony, the trial judge is uniquely qualified to deter-
mine the appropriate sentence.
Johnson’s sentence is therefore V ACATED and R EMANDED
for resentencing consistent with this opinion.
7-16-10