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United States v. Johnson

United States District Court, S.D. Ohio, Western Division, Dayton

July 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BRYAN K. JOHNSON, Defendant.

          Walter H. Rice District Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         This criminal case is before the Court on Defendant's First Step Act Motion which seeks the application to his case of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 51943 (Motion, ECF No. 496). The United States opposes the Motion (ECF No. 498). Defendant's time to file a reply memorandum in support expired July 8, 2019, and no reply memorandum has been filed.

         All First Step motions are referred to the undersigned pursuant to General Order Day 13-01.

         Sentencing History

         On August 13, 2008, the Grand Jury for this Court returned a 49-count Indictment against 13 individuals. Defendant was charged on Counts 1-5, 32-33, and 35-38 (ECF No. 31). Defendant pleaded guilty to Counts 1, 2, and 32 of the Indictment (Plea Agreement, ECF No. 108, PageID 821). On February 12, 2009, he was sentenced to 144 months imprisonment on each of Counts 1 and 2 and 48 months of Count 32 with attached supervised release terms, and with the sentences to be served concurrently (Judgment, ECF No. 154). Count 1 charged Johnson with conspiring to distribute in excess of fifty grams of cocaine base and one hundred grams of heroin. Count 2 charged the employment of persons under eighteen years of age to violate the controlled substances laws. Count 32 charged use of a communication facility in the commission of the conspiracy. (Indictment, ECF No. 31). At the time of sentencing, the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372, had not yet been enacted, so the statutory range was ten years to life because more than fifty grams of crack cocaine was involved.

         The Fair Sentencing Act became effective August 3, 2010, reducing the statutory range to five to forty years for the amount of crack cocaine involved here. On December 13, 2011, on joint recommendation of the parties based on the Fair Sentencing Act, Johnson's 144 month sentence was reduced to 117 months (Decision and Entry, ECF No. 363, citing Motion for Retroactive Application of Sentencing Guidelines, ECF No. 358).

         On November 1, 2014, the United States Sentencing Commission promulgated Guideline Amendment 782, which reduced the guideline range for Johnson's offense to eight-seven to 108 months. On Defendant's March 3, 2015, Motion to Reduce Sentence (ECF No. 416), the Court further reduced his sentence to ninety-four months (Order, ECF No. 417).

         Johnson began serving his supervised release sentence October 30, 2015. However, on April 19, 2017, Johnson was indicted by a Montgomery County grand jury for possession of carfentanyl, methamphetamine, cocaine, and criminal tools. Notified of that fact, the Court issued a warrant for Johnson's arrest (ECF No. 460). On September 19, 2017, Johnson was convicted in state court on two counts of aggravated possession of drugs (less than five times bulk) and sentenced to twenty-four months imprisonment. On November 16, 2017, Johnson admitted the supervised release violation (Minute Entry, ECF No. 470). Judge Rice revoked his supervised release and sentenced him to thirty-eight months imprisonment, to be served concurrently with the state sentence, and a reimposed supervised release term of twenty-two months (Decision and Entry, ECF No. 472).

         Johnson's Position

         Johnson asserts that when he was re-sentenced in 2011, the Court focused on the changed guideline range rather than the new statutory range adopted by the Fair Sentencing Act (Motion, ECF No. 496, PageID 2579-80). Although Johnson had four criminal history points when originally sentenced, he argues he would have none today because he would have qualified for safety valve relief and two of his prior convictions would not have produced criminal history points under current Guidelines. With a criminal history category of I and an adjusted offense level of 28, his current guideline range would be 78-97 months. Id. at PageID 2581. Johnson notes that his state sentence for the offense which produced his supervised release violation ended May 10, 2019, and his federal sentence on that violation will end November 8, 2019. Id.

         The Government's Position

         Although Johnson was sentenced before the Fair Sentencing Act took effect, the Government notes he was re-sentenced in 2011 as if the Fair Sentencing Act had applied. Because a defendant who was sentenced under the Fair Sentencing Act is not eligible for relief under § 404 of the First Step Act, neither should someone who was re-sentenced under the Act be eligible (Memo. in Opp., ECF No. 498, PageID 2587). Second, the United States asserts Johnson is not eligible for treatment under the safety valve because the safety valve provision of the First Step Act is not applicable retroactively. Id. Third, the United States notes Johnson's present imprisonment is pursuant to a supervised release violation that involved the same drug trafficking conduct for which he was initially sentenced. Reducing his supervised release term because he has somehow overserved his sentence would be contrary to United States v. Johnson, 529 U.S. 53 (2000). Id. at ...


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