United States v. Benjamin Johnson , 502 F. App'x 611 ( 2013 )

NONPRECEDENTIAL DISPOSITION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 March 11, 2013*
Decided April 10, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 12-3775 Appeal from the United
States District Court for
UNITED STATES OF AMERICA, the Northern District of
Plaintiff-Appellee, Indiana, Hammond
Division.
v.
No. 2:01 CR 98
BENJAMIN JOHNSON, James T. Moody, Judge.
Defendant-Appellant.
Order
Ever since his conviction for crack-cocaine offenses, Benjamin Johnson has
been seeking a lower sentence.
Last July we rejected his contention that the retroactive amendment to the
Sentencing Guidelines implementing the Fair Sentencing Act of 2010 authorized
the district court to cut his sentence. Johnson lost because anyone who
distributed more than 8.4 kilograms of cocaine remains in the highest offense
*
This successive appeal has been submitted to the original panel under Operating Procedure 6(b).
After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f)
No. 12-3775 Page 2
level and does not benefit from the changes. United States v. Johnson, No. 12-1617
(7th Cir. July 9, 2012) (nonprecedential disposition).
The district judge then took up Johnson’s “motion to supplement” his
original motion for a reduction, and denied this too. Johnson’s motion had been
filed only two days after the district court’s original decision and therefore
suspended its finality. United States v. Rollins, 607 F.3d 500 (7th Cir. 2010). This
means that appeal No. 12-1617 should have been dismissed for lack of
jurisdiction, because the district court’s decision was not final—something no
one pointed out in appeal No. 12-1617. But the current appeal is unquestionably
from a final decision.
The current appeal fails for the same substantive reason as No. 12-1617,
which we incorporate without repeating what we said there. Johnson believes
that a motion under a retroactive Guideline requires the district judge to perform
what amounts to a complete resentencing, recalculating from scratch the amount
of cocaine for which he is responsible. We held otherwise last July, pointing out
that Dillon v. United States, 130 S. Ct. 2683 (2010), had rejected an argument that a
motion under 18 U.S.C. §3582(c)(2) permits a district judge to reexamine findings
made in the original sentencing. More recently, we have reiterated that, in acting
on a motion under a retroactive Guideline, the district court must apply all of the
calculations made at the time of the original sentence and change only the
Guideline tables that were reduced retroactively. United States v. Wren, 706 F.3d
861 (7th Cir. 2013). Given Dillon and Wren, the district court’s decision must be
AFFIRMED.