United States v. Cleveland Johnson ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1610
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United States of America, *
*
Plaintiff - Appellee, * On Appeal from the United
* States District Court for the
v. * District of Nebraska.
*
Cleveland Johnson, * [UNPUBLISHED]
*
Defendant - Appellant. *
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Submitted: December 13, 2010
Filed: January 12, 2011
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Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
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PER CURIAM.
Cleveland Johnson appeals the district court's1 denial of his motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendment 706 of the United
States Sentencing Guidelines, which provided certain reductions in base offense levels
for defendants convicted of crack cocaine offenses. Johnson was convicted by a jury
in 1993 of conspiracy to possess with intent to distribute more than five kilograms of
cocaine and more than 50 grams of crack cocaine, in violation of 21 U.S.C. §§
841(a)(1), (b)(1) and 846. The district court found that Johnson himself was
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
responsible for between 7.2 to 13 kilograms of crack cocaine and sentenced him to
336 months imprisonment. In 2008 Johnson moved to reduce his sentence pursuant
to Amendment 706. The district court denied the motion, and Johnson appeals. We
affirm.
Johnson argues that he is entitled to a sentence reduction under § 3582(c)(2)
and Amendment 706. We disagree. The district court found at Johnson's sentencing
that he was responsible for more than 7 kilograms of crack cocaine. Amendment 706
did not lower the base offense level of an individual responsible for more than 4.5
kilograms of crack cocaine. See U.S.S.G. § 2D1.1(c); see also United States v.
Wanton, 525 F.3d 621, 622 (8th Cir. 2008) (per curiam). Because of the amount of
drugs for which Johnson was found responsible, he was not eligible for a reduction
in offense level or guideline range under Amendment 706. His original sentence was
therefore not lowered by the Sentencing Commission's amendment, as required under
§ 3582. See U.S.S.G. § 1B1.10(a)(2)(B). The district court therefore did not err by
denying Johnson's motion for a sentence reduction.
Johnson also disputes the court's denial of a sentence reduction on the basis that
one of his codefendants, who Johnson asserts had been found responsible for the same
drug quantity, received a reduction in his sentence under § 3582(c)(2). Although we
don't have access to the entire record for his codefendant, we note that the two parties
were not entirely similarly situated. Johnson's total offense level was greater than that
of his codefendant based upon his leadership role in the conspiracy, and the
government stipulated to a sentence reduction for his codefendant.2
2
The government and defense agreed in the stipulation that the total offense
level of Johnson's codefendant changed from 39 to 37 and that "the new reduced
sentence under the amended guidelines should be 179 months based upon the prior
computation of specific offense characteristics, adjustments, and any departures."
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Finally, Johnson argues that the court had the discretion in an Amendment 706
proceeding to reduce his sentence below the guideline range under United States v.
Booker, 543 U.S. 220 (2005). This argument is foreclosed by our prior decisions and
by the recent decision of the Supreme Court in Dillon v. United States, 130 S. Ct.
2683, 2689–92 (2010). See United States v. Winston, 611 F.3d 919, 920–22 (8th Cir.
2010).
Accordingly, the judgment of the district court is affirmed.
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