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United States v. Johnson

United States District Court, E.D. Washington

October 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY D. JOHNSON, Defendant.

          MEMORANDUM OPINION AND ORDER ON MOTION FOR REDUCTION OF SENTENCE

          JUSTIN L. QUACKENBUSH, SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on Defendant's Motion For Imposition Of A Reduced Sentence (ECF No. 222) filed by Attorney Matthew Campbell of the Federal Defenders of Eastern Washington. The Government is represented by Russell Smoot, Assistant United States Attorney. The Motion (ECF 222) is Denied in part and Granted in part as provided herein.

         I. Background

         On October 19, 2004, a grand jury returned a three-count Indictment against Defendant: (1) conspiracy to distribute 5 or more grams of a mixture or substance containing cocaine base under 21 U.S.C. §§ 841(a)(1) and 846; and (2) and (3) distribution of 5 grams or more of a mixture or substance containing cocaine base under 21 U.S.C. § 841(a)(1). (ECF No. 1). On November 16, 2004, the grand jury returned a four-count Superseding Indictment against Defendant with an additional count: (4) possession with intent to distribute 5 grams or more of a mixture or a substance containing cocaine base under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). (ECF No. 21-3). On January 19, 2005, the United States Attorney filed an Information to establish Defendant's two prior drug convictions pursuant to 21 U.S.C. § 851. (ECF No. 47).

         A jury trial was held, and Count 1 was dismissed at trial. (ECF No. 148). The jury returned a verdict finding Plaintiff guilty of Counts 2, 3, and 4. (ECF No. 117). Each verdict identified the amount of the substances as “5 grams or more.”

         Pursuant to 21 U.S.C. § 841(b)(1)(B) (2002), Defendant first faced a statutory sentencing range of no less than ten years to life on each of the convicted Counts. According to the Presentence Investigation Report (PSR), Defendant was responsible for 8.7 grams of cocaine base on Count 2, 9.3 grams of cocaine base on Count 3, and 28.1 grams of cocaine base on Count 4. (ECF No. 221 at 4-5). Under the Sentencing Guidelines (U.S.S.G.), that drug quantity resulted in a base Offense Level of 30. (Id. at 7). Defendant received a two point increase for possessing a weapon during the offenses, for a total Offense Level of 32. (Id.). Defendant's Criminal History computation established an initial Criminal History Category of III. (Id. at 15). Based on this, Defendant's Guideline Sentencing range would have been 151-188 months. U.S.S.G. Ch. 5, Pt. A. (ECF No. 221 at 21).

         Because Defendant had two prior felony drug convictions which made him a Career Offender, his base Offense Level was 37 and his Criminal History Category was increased to VI pursuant to U.S.S.G. § 4B1.1(b). (ECF No. 221 at 7). The final calculation by the United States Probation Office used by the court was an Offense Level of 37 with a Criminal History Category of VI. (Id. at 15). Defendant's Guideline Sentencing range was 360 months to life. U.S.S.G. Ch. 5, Pt. A. (ECF No. 221 at 21).

         At the July 14, 2005 sentencing hearing, Defendant was sentenced to 240 months on all convicted Counts. (ECF Nos. 147, 148). In the July 22, 2005 Sentencing Memorandum, the court discussed the Sentencing Guideline range, the recommendation of the Probation Officer in the PSR, the mandated minimum of ten years pursuant to 21 U.S.C. § 841(b)(1)(B) (2002), and the Section 3553(a) factors. (ECF No. 146).

         Defendant appealed his judgment and sentence to the Ninth Circuit Court of Appeals. (ECF No. 153). The Ninth Circuit affirmed the judgment and sentence. (ECF No. 186). In 2008, Defendant moved pro se to have his sentence modified based on alleged ineffective assistance of counsel, a claimed unconstitutionality of his sentence, and Amendment 706 of the U.S.S.G. (ECF Nos. 188, 190, 193). His motions were Denied. (ECF No. 200). In 2011, Defendant again moved pro se to have his sentence modified based on Amendment 750 of the U.S.S.G. (ECF No. 201). His motion was Denied. (ECF No. 208). Defendant appealed the court's order denying modification to the Ninth Circuit, (ECF N. 209), and the appellate court dismissed the appeal for failure to prosecute, (ECF No. 217). Both of Defendant's attempts to modify his sentence following amendments to the guidelines were denied because Defendant's increased sentence was premised on his status as a career criminal and not the cocaine base sentencing enhancements. (ECF Nos. 200, 208).

         On April 23, 2019, Defendant moved pro se for appointment of counsel to file a motion to reduce his sentence pursuant to the amendments to 21 U.S.C. § 841 made retroactive by the First Step Act. (ECF No. 218). On May 1, 2019, the Federal Defenders of the Eastern District of Washington and Idaho filed a Motion for appointment of counsel to prepare a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c). (ECF No. 219). The court Granted both Motions and appointed the Federal Defenders of the Eastern District of Washington and Idaho to represent Defendant in his Motion for a reduced sentence. (ECF No. 220). On June 18, 2019, appointed counsel for Defendant filed a Motion to Reduce Sentence (ECF No. 222). The Government filed a Response (ECF No. 226), and Defendant filed a Reply (ECF No. 227). Neither party requested a hearing with oral argument be held in the matter (ECF Nos. 222, 226, 227), and the court deems such a hearing unnecessary.

         II. Issues

         This case concerns the First Step Act in which Congress permitted a sentencing court to “impose a reduced sentence as if . . . the Fair Sentencing Act of 2010. . . were in effect at the time the covered offense was committed.” This case addresses two issues emerging from the application of the First Step Act: (1) whether in applying the First Step Act does the court consider the drug weight of conviction or the drug weight identified in the PSR and (2) whether the First Step Act authorizes or requires this court to conduct a plenary resentencing, which would include recalculating the Sentencing Guidelines Range as if the Defendant was being sentenced for the first time under present law, or whether the court is limited to reductions resulting from the Fair Sentencing Act.

         The Government argues in its brief that the First Step Act should be applied to the drug weight identified in Defendant's PSR and Defendant is not eligible for a sentence modification. The Government also argues that in the event Defendant is eligible for a sentence modification, the First Step Act does not allow for a plenary resentencing, Defendant's Career Offender Status remains unchanged, and the court should exercise its discretion and decline to modify the sentence (ECF No. 226).

         III. ...


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