POSITION WITH RESPECT TO SENTENCING FACTORS filed by Plaintiff Carl… — USA v. Western Distribution, LLC. et al (Dkt. 94)

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U.S. District Court for the Central District of California · No. 5:21-cr-00170-VAP · Doc. 94 · 2022-11-06 · Docket on CourtListener

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A defendants' position with respect to sentencing filed November 6, 2022 as Document 94 in United States v. National Distribution, Inc., et al., Case Nos. 5:18-00114-VAP and 5:21-00170-VAP, in the U.S. District Court for the Central District of California, Western Division. Filed by counsel for Carl Bradley Johansson and National Distribution, Inc., it asks the court to impose a term of 57 months based on a total offense level of 24 and criminal history category II, rather than the 120-month sentence the government requests. It opposes a 9-level upward adjustment under U.S.S.G. § 2Q1.2(b)(2) and a 4-level role adjustment under U.S.S.G. § 3B1.1(a). It argues the 18 U.S.C. § 3553 factors, citing Gall v. United States and a United States Sentencing Commission recidivism study. The eleven-page filing lists a November 28, 2022 sentencing date and attaches exhibits, with Exhibit A under seal.

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EDWARD M. ROBINSON (CA Bar 216244) 
Brian A. Robinson (CA Bar 333650) 
21515 Hawthorne Blvd, Suite 730 
Torrance, CA 90503 
Office:  (310) 316-9333 
Facsimile: (310) 316-6442 
eroblaw@gmail.com 
 
Attorneys for Defendants 
Carl Bradley Johansson, 
National Distribution, Inc.   
 
 
 
 
UNITED STATES DISTRICT COURT 
CENTRAL DISTRICT OF CALIFORNIA 
WESTERN DIVISION 
 
 
 
UNITED STATES OF AMERICA, 
 
Plaintiff, 
v. 
NATIONAL DISTRIBUTION, INC., et 
al.  
 
Defendant. 
Case No. 5:18-00114-VAP 
Case No. 5:21-00170-VAP 
DEFENDANTS CARL BRADLEY 
JOHANSSON’S AND NATIONAL 
DISTRIBUTION, INC.’S. POSITION 
WITH RESPECT TO SENTENCING; 
EXHIBITS IN SUPPORT; EXHIBIT 
A UNDER SEAL 
DATE: November 28, 2022 
TIME: 10:00 a.m. 
Courtroom of the  
Honorable Virginia A. Phillips 
 
 
Defendants Carl Bradley Johansson and National Distribution, Inc., by and 
through their attorneys of record Edward M. Robinson and Brian Robinson, hereby file 
their position with respect to sentencing.  
 
Case 5:21-cr-00170-VAP   Document 94   Filed 11/06/22   Page 1 of 11   Page ID #:716

 
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TABLE OF CONTENTS 
INTRODUCTION ............................................................................................................ 1 
ADVISORY GUIDELINE CALCULATION .................................................................. 2 
18 U.S.C. § 3553 FACTORS ............................................................................................ 2 
I. 
Personal History and Characteristics .................................................................... 4 
II. 
Just Punishment and Deterrence ........................................................................... 5 
III. Most Effective Form of Treatment ....................................................................... 7 
CONCLUSION ................................................................................................................. 8 
 
 
 
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TABLE OF AUTHORITIES
Cases 
Gall v. United States 
552 U.S. 38 (2007) .............................................................................................................................. 5 
Tapia v. United States 
564 U.S. 319 (2011) ............................................................................................................................ 6 
United States v. Collington 
461 F.3d 805 (6th Cir. 2006) ............................................................................................................... 7 
Statutes 
18 U.S.C. § 3553 ............................................................................................................................. passim 
U.S.S.G. § 2Q1.2 ..................................................................................................................................... 2 
U.S.S.G. § 3B1.1 ...................................................................................................................................... 2 
Other Authorities 
David Weisburd et. al., Specific Deterrence in a Sample of Offenders Convicted of White-Collar 
Crimes, 33 Criminology 587 (1995) ................................................................................................... 5 
U.S. SENTENCING COMM’N, MEASURING RECIDIVISM: THE CRIMINAL HISTORY 
COMPUTATION OF THE FEDERAL SENTENCING GUIDELINES (2004) ............................... 6 
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INTRODUCTION 
Mr. Johansson takes issue with the government’s description of him and his 
conduct as set forth in the introduction to its Objections to the Presentence Report and 
Sentencing Memorandum. (Doc. 345) As set forth in Mr. Johansson’s motion to 
withdraw his guilty plea to counts 1 and 2 in case no. 18-cr-00114-VAP, (hereinafter 
referred to as “case 114”), Mr. Johansson asserts his innocence as to the conduct 
involving the “R” stamp, failure to purge, and obstructive behavior. He also asserts his 
innocence as to his knowledge and responsibility for the explosion that occurred at the 
business in September 2012. He objects to the government’s claim that he refused to 
buy basic safety equipment, and most importantly, he objects to the claim that he 
ordered his two welders on May 6, 2014, to conduct welding on a tanker without 
having purged the tank of the flammable materials inside. (See Motion to Withdraw 
Plea.) 
It is these allegations as well as the claim that Mr. Johansson obstructed the 
investigation concerning the cause of these explosions that primarily drive the 
government’s request for a significant upward variance from the advisory sentencing 
guideline range to a term of 10 years in prison. A ten-year sentence, given the nature 
and circumstances of the offense, and more critically Mr. Johansson’s personal history 
and characteristics, is significantly greater than necessary to protect the public from 
future crimes of Mr. Johansson, to specifically deter him from future criminal activity, 
to reflect the seriousness of his conduct, and to provide for just punishment.  
For these reasons, as set forth herein, Mr. Johansson asks that this Court sentence 
him to a term of 57 months based on a total offense level of 24, criminal history 
category II. (PSR ¶¶ 90-123.) 
// 
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ADVISORY GUIDELINE CALCULATION 
Mr. Johansson agrees with the advisory guideline calculations set forth in the 
Presentence Report at paragraphs 90 to 123. 
Mr. Johansson opposes the government’s request for a 9-level upward 
adjustment under U.S.S.G. § 2Q1.2(b)(2). Mr. Johansson’s opposition to the 
government’s request is tied directly to his assertion of innocence with respect to 
counts 1 and 2 in case no. 18-cr-00114-VAP. For the reasons set forth in his motion to 
withdraw his plea as to those counts, Mr. Johansson takes the position that he did not 
order any welding to be done on a tanker that had not been purged and that the “R” 
stamp conduct was not done at his direction and, despite that, may not have been the 
type of work that required an “R” stamp.  
Mr. Johansson also objects to the government’s request for a 4-level upward role 
adjustment for his involvement in the “PPP fraud.” Specifically, Mr. Johansson objects 
to the government’s use of organizational defendants Western Distribution and Agri-
Comm as participants for the purpose of calculating an upward role adjustment. Clearly 
the government believes that these two entities were alter egos of Mr. Johansson. The 
same applies to “C.S.J.”, Mr. Johansson’s son, and Mr. Johansson’s wife. As the 
government bears the burden of establishing that these co-participants were organized 
or led by Mr. Johansson, which they cannot be by their status as mere straw entities, the 
government cannot claim that they should be counted as a “participant” for the purpose 
of the application of U.S.S.G. § 3B1.1(a).  
18 U.S.C. § 3553 FACTORS 
 
As the Court is well aware, 18 U.S.C. §3553(a) sets forth the congressional 
mandate that a sentencing court “shall impose a sentence sufficient, but not greater than 
necessary” to promote the factors of sentencing set forth in the statute. It is against the 
backdrop of the nature and circumstances of the offense and the personal history and 
characteristics that the court is to determine what type of sentence of incarceration is 
necessary to protect the public, promote respect for the law, provide just punishment, 
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reflect the seriousness of the offense, and provide both general and individual 
deterrence. The most important factor of sentencing that a court must consider is how 
much prison time is necessary to protect the public. Concomitant with that factor is the 
question of how much time in custody is necessary to deter Mr. Johansson from 
reoffending, i.e., creating further danger.  
 
In cases where physical and mental illness are part of a defendant’s personal 
history and characteristics and have an effect on the nature and circumstances of the 
offense, the court is required to consider the most effective means of treating those 
defects and whether it is more effective to treat the defendant in an out of custody 
setting as opposed to a prison. (18 U.S.C. § 3553(a)(2)(D).) 
The government in their position paints Mr. Johansson as a dangerous recidivist 
who did not care about the safety of his employees. As set forth in this position paper, 
and more explicitly the motion to withdraw the pleas to counts 1 and 2, Mr. Johansson 
vigorously objects to the government’s position. Not only did Mr. Johansson and the 
businesses have safety protocols in place and safety equipment made available to 
employees, their safety record over 30-years, despite the anecdotal position of the 
government, was consistent with and surpassed some of the more well-known carriers 
of hazardous materials. (See Exhibit B.) 
The government takes the position that because Mr. Johansson did not pay his 
personal income tax and that he used his income to rent a house for his family and pay 
tuition for his children, he is overtly indifferent to his social responsibility and the 
plight of the less fortunate. Mr. Johansson is not seeking to withdraw his plea of guilty 
to the tax violation or to the bank fraud. While those two classes of crimes can be 
considered as categorical evidence of an intent to steal and an indifference towards 
others, Mr. Johansson respectfully requests that this court consider his personal history 
and characteristics as it relates to his mental and physical health. 
Mr. Johansson’s psychological condition coupled with his age and his significant 
decline in physical health make it highly unlikely, if not impossible, that he will ever 
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engage in this type of business again. Mr. Johansson has absolutely no desire to do so 
as well. With that in mind, Mr. Johansson asks this Court to consider his mental illness, 
his physical illness, and the nature of his incarceration during this pandemic. He has 
suffered greatly in his incarceration, and he has been punished significantly already. He 
is certainly not asking for an immediate release; he recognizes that additional 
incarceration is warranted. Counsel for Mr. Johansson asks that this Court invoke the 
parsimony clause of 3553 and determine that a sentence of 57-months is sufficient, but 
not greater than necessary, to protect the public, to deter Mr. Johansson, to provide just 
punishment, and promote respect for the law. What Mr. Johansson really needs is a 
long term of supervision so that he can be monitored by the Probation Department and 
pursuant to this Court’s order, be the beneficiary of intensive supervision which 
includes treatment for his psychological condition in the most effective way.  
I. 
Personal History and Characteristics 
Dr. Paul Lane met with Mr. Johansson in MDCLA on three separate occasions to 
conduct a psychological evaluation of Mr. Johansson. On October 31, Dr. Lane 
produced his report. (Attached hereto as Exhibit A).1 Dr. Lane’s report provides vital 
insight into Mr. Johansson’s personal history and characteristics.  
After conducting the clinical assessment and interviews of Mr. Johansson, Dr. 
Lane concluded that Mr. Johansson “likely has a history of Bipolar II Disorder, 
hypomanic type, as well as a Phobic Disorder (claustrophobia) with post-traumatic 
sequelae and intermittent alcohol abuse.” (Id. at p. 16.) Dr. Lane also concluded that 
Mr. Johansson is currently “suffering from a Bipolar II Disorder, depressed type, along 
with claustrophobia and associated high levels of anxiety with intermittent panic 
attacks.” (Id. at p. 17.) It is Dr. Lanes opinion that Mr. Johansson’s “psychological 
condition played a role in his poor judgment and criminal behavior in the past.” (Id.) 
 
1 Exhibit A is filed under seal. 
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Mr. Johansson’s undiagnosed psychological conditions are “quite treatable” if 
Mr. Johansson is able to receive the appropriate treatment, i.e., “psychotropic 
medication and evidence-based cognitive behavioral psychological treatment.” (Id.) If 
Mr. Johansson is able to receive such treatment, “the likelihood of recidivism will be 
significantly reduced[.]” (Id.) Most notably, after conducting multiple tests to 
determine whether Mr. Johansson was malingering, Dr. Lane concluded that Mr. 
Johansson was not. (Id.) 
II. 
Just Punishment and Deterrence 
The requirement that a sentence promote respect for the law and provide just 
punishment is tied directly to who Mr. Johansson is per the mandate of 18 U.S.C. § 
3553(a)(1). As the United States Supreme Court said in Gall v. United States, 552 U.S. 
38, 54 (2007), “a sentence of imprisonment may work to promote not respect but 
derision of the law if the law is viewed as merely a means to dispense harsh punishment 
without taking into account the real conduct and circumstances involved in sentencing.” 
Here, as set forth in more detail in Mr. Johansson and National’s Motion to 
Withdraw Guilty Pleas, the government’s request for a 120-month sentence is premised 
on an exaggerated and, at times, false characterization of Mr. Johansson and the offense 
conduct. As such, to sentence Mr. Johansson to a term longer than 57-months would be 
unjustifiably and unreasonably harsh.   
18 U.S.C. § 3553(a)(2)(B) requires the Court to consider the need for the 
sentence imposed to afford adequate deterrence to criminal conduct. While this Court 
must consider both general and individual deterrence, two very important examinations 
of the concepts of deterrence must be considered. First, the anecdotal notion that longer 
sentences have a greater general deterrent effect is belied by empirical and academic 
findings. In a study involving federal white-collar defendants, there was no difference 
in deterrence found between sentences of probation and imprisonment. See David 
Weisburd et. al., Specific Deterrence in a Sample of Offenders Convicted of White-
Collar Crimes, 33 Criminology 587 (1995). Second, and most importantly, the United 
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States Sentencing Commission has found that “[t]here is no correlation between 
recidivism and Guidelines’ offense level. Whether an offender has a low or high 
Guideline offense level, recidivism rates are similar. While surprising at first glance, 
this finding should be expected. The Guidelines’ offense level is not intended or 
designed to predict recidivism.” See U.S. SENTENCING COMM’N, MEASURING 
RECIDIVISM: THE CRIMINAL HISTORY COMPUTATION OF THE FEDERAL 
SENTENCING GUIDELINES, at 15 (2004). To sentence Mr. Johansson to a term of 
imprisonment greater than 57-months to deter the community is unnecessary and 
wrong. 
18 U.S.C. § 3553(a)(2)(C) requires this Court to consider the need for the 
sentence imposed to protect the public from further crimes of Mr. Johansson. The need 
to protect the public from further crimes of Mr. Johansson is easily measured. The 
Sentencing Commission has engaged in empirical studies concerning what factors 
affect recidivism generally. These factors include, among other things, age, 
employment, education, family support, abstinence from drug and alcohol use, and the 
nonviolent nature of the offense. See U.S. SENTENCING COMM’N, MEASURING 
RECIDIVISM: THE CRIMINAL HISTORY COMPUTATION OF THE FEDERAL 
SENTENCING GUIDELINES (May 2004). The Commission in its study found that 
“recidivism rates decline relatively consistently as age increases [and defendants] over 
the age of 40 ... exhibit markedly lower rates of recidivism in comparison to younger 
defendants.”  
Mr. Johansson is a 64-year-old, highly educated man who has maintained steady 
employment since his childhood, has strong support from his friends and family, has no 
history of drug abuse, and this is a non-violent offense. (See Exhibit A.) Moreover, due 
to Mr. Johansson’s age, declining mental and physical health, and tarnished reputation, 
he will never work in this industry again. As set forth in Dr. Lane’s report, if Mr. 
Johansson “receives appropriate treatment in the future, the likelihood of recidivism 
will be significantly reduced[.]” (Id., p. 17.) 
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III. Most Effective Form of Treatment 
18 U.S.C. § 3553(a)(2)(D) requires this Court to consider the need for the 
sentence imposed to provide Mr. Johansson with the needed medical care in the most 
effective manner. This section provides the rehabilitative function of the sentencing 
statute. Tapia v. United States, 564 U.S. 319, 325 (2011). Mr. Johansson has significant 
physical and mental health problems, as set forth in the Presentence Report and in Dr. 
Lane’s report. (PSR ¶¶ 149-156; see also Exhibit A.) Mr. Johansson clearly needs 
psychological treatment. His claustrophobia, anxiety, and depression can be tied 
directly to the trauma he suffered from his abusive uncle. In the case of United States v. 
Collington, 461 F.3d 805 (6th Cir. 2006), the Circuit upheld a significant variance 
based upon the defendant’s need for psychological treatment due to the fact that the 
defendant’s father was murdered when the defendant was nine and his mother died two 
years later. In addition to his mental health problems, Mr. Johansson suffers from 
severe physical ailments including asthma, chronic obstructive pulmonary disease, 
diplopia, migraine headaches, vertigo, high blood pressure and high cholesterol, and 
atrial fibrillation. (Exhibit A at p. 7.) Incarcerating Mr. Johansson beyond 57-months 
will deprive him of the medical and psychological treatment that he needs which can be 
provided in the most effective manner through intense supervision with stringent 
mental health treatment conditions. 
 
 
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CONCLUSION 
 
If this Court is not inclined to grant Mr. Johansson and National’s pending 
Motion to Withdraw Guilty Pleas, Mr. Johansson requests that he be sentenced to a 
term of 57-months in prison with intensive supervision to follow including treatment 
for his mental illness. Counsel for National requests that this Court impose the sentence 
recommended by the Probation Office in Doc. #. 
 
If this Court is inclined to grant Mr. Johansson and National’s Motion to 
Withdraw Guilty Pleas, Mr. Johansson requests that sentencing on the remaining counts 
be continued to a date set by the Court.  
 
Respectfully submitted, 
 
 
 
 
 
 
 
DATED:  November 4, 2022 
By   /s/ Edward M. Robinson 
Edward M. Robinson 
Brian A. Robinson 
 
Attorneys for Defendant 
Carl Bradley Johansson 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Case 5:21-cr-00170-VAP   Document 94   Filed 11/06/22   Page 11 of 11   Page ID #:726

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