United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
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.
First Step motions are referred to the undersigned pursuant
to General Order Day 13-01.
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.
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.
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).
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).
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.
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