United States v. Theodore Johnson ( 2014 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 27, 2014*
Decided June 27, 2014
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
Nos. 13-3348 & 13-3556
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff–Appellee, Court for the Southern District of Illinois.
v. Nos. 3:99CR30022-001 & 3:99CR3022-005
THEODORE JOHNSON and David R. Herndon,
FREDERICK LEE IRONS, Chief Judge.
Defendants–Appellants.
ORDER
Theodore Johnson and Frederick Irons appeal from adverse decisions on motions
under 18 U.S.C. § 3582(c)(2) for a sentence reduction on the basis of Amendment 591 to
the sentencing guidelines. Because the two appeals present the identical issue, we have
consolidated them for disposition.
*
After examining the briefs and records, we have concluded that oral argument is
unnecessary. Thus these appeals are submitted on the briefs and records. See FED. R.
APP. P. 34(a)(2)(C).
Nos. 13-3348 & 13-3556 Page 2
Johnson and Irons both pleaded guilty to conspiracy to distribute crack cocaine.
See 21 U.S.C. §§ 846, 841(a)(1). At their sentencing hearings—Irons’s in 1999 and
Johnson’s in 2000—the district court found that each defendant’s relevant conduct
involved at least 1.5 kilograms of cocaine base. Applying U.S.S.G. § 2D1.1 as the offense
guideline, the court sentenced Irons to 240 months’ imprisonment and Johnson to 360
months’ imprisonment. We affirmed those sentences on direct appeal. See United States
v. Irons, 5 F. App’x 516 (7th Cir. 2001); United States v. Johnson, 3 F. App’x 524 (7th Cir.
2001). Since that time, Johnson and Irons have unsuccessfully challenged their sentences
through various means, including multiple unsuccessful motions to vacate, set aside, or
correct their sentences under 28 U.S.C. § 2255.
In 2013 the two men filed separate motions under § 3582(c)(2) asserting that a
sentence reduction was warranted by Amendment 591. Section 3582(c)(2) allows a
district court to reduce a term of imprisonment if a retroactive amendment to the
sentencing guidelines later lowers the guidelines range. And Amendment 591, which
became effective on November 1, 2000, retroactively requires that the sentencing court’s
selection of the offense guideline under Chapter 2 be based on the offense of conviction,
not on judicial findings of uncharged conduct. See U.S.S.G. app. C, vol. II, amend. 591
(2003); United States v. Kosmel, 272 F.3d 501, 507 (7th Cir. 2001); United States v. Moreno,
421 F.3d 1217, 1219–20 (11th Cir. 2005); United States v. Rivera, 293 F.3d 584, 585 (2d Cir.
2002). The district court concluded that Amendment 591 did not lower the guidelines
range for either Johnson or Irons. The court also noted that the two men largely were
echoing arguments they had made based on Apprendi v. New Jersey, 540 U.S. 466 (2000),
in their unsuccessful motions for collateral review.
We agree with the district court that Amendment 591 does not make either
defendant eligible for a reduced sentence. When the two defendants were sentenced,
the district court applied § 2D1.1 as the offense guideline for the drug conspiracy, just as
the court would have been required to do if Amendment 591 already had been in place.
See U.S.S.G. app. A (specifying § 2D1.1 as offense guideline for violations of § 846 and
§ 841(a)).
Indeed, the common argument pressed by Johnson and Irons has nothing to do
with Amendment 591. Their real objection is to the sentencing court’s determination of
a drug quantity that was not charged in the indictment, admitted by them, or found by
a jury. But the defendants are just rehashing the arguments they made earlier in their
collateral attacks under § 2255. Those arguments relied on Apprendi, and the attacks
failed because Apprendi does not apply retroactively on collateral review. Simpson v.
Nos. 13-3348 & 13-3556 Page 3
United States, 721 F.3d 875, 876 (7th Cir. 2013); Wilson v. United States, 414 F.3d 829, 831
(7th Cir. 2005).
The judgments are AFFIRMED.