United States v. Duricco Johnson , 747 F.3d 915 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2732
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DURICCO JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:07-cr-10121 — Joe Billy McDade, Judge.
SUBMITTED NOVEMBER 14, 2013 — DECIDED MARCH 19, 2014
Before CUDAHY, POSNER, and KANNE, Circuit Judges.
KANNE, Circuit Judge. In 2011, Duricco Johnson pled guilty
to possessing crack cocaine with intent to distribute and
possessing a gun in furtherance of a drug crime. The district
court sentenced him to sixty months’ imprisonment, departing
from the 120-month mandatory minimum for repeat drug
offenses because Johnson cooperated with the government. See
18 U.S.C. § 3553(e). Johnson now seeks a sentence reduction
2 No. 13-2732
under 18 U.S.C. § 3582(c)(2), citing changes to the crack cocaine
guidelines. The district court refused to grant the requested
reduction, noting that Johnson’s motion was an impermissible
second or successive motion for reduction of sentence and,
regardless, that Johnson did not qualify for a reduction on the
merits. We agree that Johnson’s motion lacks merit.
Johnson first sent a letter to the district court on July 18,
2011, seeking a reduction of his sentence “because of the
retroactive crack-cocaine news that [he] received.” The district
court characterized this letter as a motion for a sentence
reduction under § 3582(c)(2) and appointed the Federal
Defender as counsel for Johnson. Shortly thereafter, the Federal
Defender filed a motion to withdraw, having concluded that
our decision in United States v. Poole prevented the district
court from reducing Johnson’s sentence. 550 F.3d 676 (7th Cir.
2008). The district court agreed, and denied Johnson’s motion.
Johnson sent another letter requesting a sentence reduction
on May 17, 2013. The court again appointed the Federal
Defender to represent Johnson, and Johnson filed a counseled
motion to reduce sentence. The motion claimed Johnson
deserved a reduction for three reasons: (1) the crack cocaine
amendments had been revised and made retroactive, (2) his
sentence violated the Equal Protection clause, and (3) his
sentence violated the Eighth Amendment. The court denied
Johnson’s motion both on procedural grounds and on the
merits. First, the court found that United States v. Redd prohib-
ited Johnson’s motion as a second or successive § 3582(c)(2)
motion based on the same Sentencing Guidelines amendment.
630 F.3d 649, 651 (7th Cir. 2011). The court went on to address
No. 13-2732 3
the merits of Johnson’s claims, finding that Poole foreclosed
relief and that the constitutional arguments lacked merit.
Johnson spends a good deal of time in his brief arguing
that, despite Redd’s prohibition, we should consider his motion.
This is ultimately irrelevant, as Johnson’s motion cannot
succeed on the merits. We cannot reduce a defendant’s
sentence under § 3582(c)(2) if the original sentence was based
on a statutory minimum. Poole, 550 F.3d at 679–80. Because
Johnson had a prior felony drug conviction, he was subject to
a 120-month mandatory minimum. 21 U.S.C. § 841(b)(1)(B).
The district court sentenced Johnson below this minimum at
the government’s request, pursuant to 18 U.S.C. § 3553(e).
Although the district court departed from the mandatory
minimum, Johnson’s sentence was still based on the manda-
tory minimum, not the subsequently-amended Sentencing
Guideline. Poole, 550 F.3d at 678.
Johnson tries to argue that Poole was superseded by the
2011 amendments to the Sentencing Guidelines, which defined
“applicable guideline range” for the first time. He suggests that
the definition includes only the criminal history category and
offense level calculations, without consideration of any
statutory mandatory minimums. But the commentary Johnson
points to defines “guideline range” as “the range that corre-
sponds to the offense level and criminal history category
determined pursuant to § 1B1.1(a).” U.S.S.G. § 1B1.1 cmt. n.1(A)
(emphasis added). Subsection 8 of § 1B1.1(a) directs a sentenc-
ing judge to apply parts B through G of Chapter 5 of the
guidelines. This includes § 5G1.1, which provides that where
a minimum sentence is greater than the guidelines sentence,
the minimum sentence becomes the guidelines sentence. The
4 No. 13-2732
statutory minimum is part of the “applicable guideline range.”
Johnson’s argument is a non-starter.
Johnson also invokes the constitutional avoidance canon,
suggesting that we should reduce his sentence in order to
avoid any doubt that it violates the Equal Protection Clause
and the Eighth Amendment. These arguments are outside the
realm of a hearing on a § 3582(c)(2) motion: they do not relate
to an amendment to the sentencing guidelines and could have
been challenged on direct appeal. United States v. Jackson, 573
F.3d 398, 400 (7th Cir. 2009); United States v. Lovett, __ Fed.
Appx. __, No. 13-1994, 2014 WL 243238 at *1 (7th Cir. Jan. 23,
2014).
Finding no reason to reverse the decision of the district
court, we AFFIRM.