United States v. Johnson

MEMORANDUM *

James Raymond Johnson pleaded guilty to one count of conspiracy to manufacture and distribute marijuana in violation of 21 U.S.C. §§ 841 (a)(1) and 846. His original sentence was vacated by this Court and now he appeals the 60-month sentence imposed at resentencing. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 . We conclude that the district court once again applied the incorrect standard of proof when it found *192 Johnson ineligible for the “safety valve” protections accorded in U.S.S.G. § 5C1.2. Accordingly, we vacate Johnson’s sentence for a second time, and remand for resentencing.

At his original sentencing, the district court sentenced Johnson to 60 months in prison and five years of supervised release, and found that he did not qualify for the safety valve protections accorded in U.S.S.G. § 5C1.2. On appeal, this Court vacated Johnson’s sentence, and determined that the district court erred by applying the incorrect burden of proof. United States v. Johnson, 46 Fed.Appx. 533, 533-34 (9th Cir.2002) (Johnson I); see also United States v. Nelson, 222 F.3d 545, 550-51 (9th Cir.2000) (explaining that the standard of proof for application…