United States v. Johnson ( 2011 )


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  • UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    UNITED STATES OF AMERICA
    Crim. No. 86-166 (TFH)
    vs.
    GUY Q. JOHNSON,
    Defendant.
    \z\/\a\aa\J\/\./\/§/
    MEMORANDUM OPINION
    Pending before the Court is Mr. Johnson’s Pro Se Motion to Correct an Illegal Sentence
    under Fed. R. Crim. P. 35. The Government opposes the motion, arguing that the Court should
    construe the motion as a habeas motion under 
    28 U.S.C. § 2255
    . After careful consideration of the
    parties’ submissions and the record of this case, the Court allows Mr. Johnson’s motion to continue
    under FRCrP 35 but DENlES the motion because his sentence was legal.
    I. Background
    Defendant was charged by indictment in this case with three counts of distribution of
    phencyclidine near a school and three counts of distribution of marijuana near a school in violation of
    
    21 U.S.C. § 845
    (a). He was tried byjury on July 7, 1986 and July 8, 1986 with the Honorable
    Gerhard A. Gesell presiding. He was found guilty on all counts. On July 31, 1986, Judge Gesell
    sentenced defendant to 3 to 9 years imprisonment on each count, with the sentences to run
    concurrently, and to a 6 year "special parole" term. On March 23, l987, defendant’s convictions
    were affirmed on appeal.
    Mr. Johnson filed this motion in September 20()7. He argues-or at least suggests_that his
    sentence was illegal because (i) federal law did not allow for a minimum or maximum prison term of
    3 or 9 years, respectively; (ii) although minimum and maximum sentences were available under D.C.
    law, "special parole" terms did not exist under D.C. law; and (iii) the Federal Sentencing Guidelines
    (the "Guidelines") should apply to his sentence, thus resulting in a lower sentence.
    II. Analysis
    The version of FRCrP 35 that existed on July 31, 1986-the date of Mr. Johnson``s
    sentencing_provided that the Court "may correct an illegal sentence at any time." Mr. Johnson can
    rely on this old version. See Ba_vlor v. Unz``ted Slates, 
    314 F. Supp. 2d 47
    , 50 n.l (D.D.C. 2004)
    ("Because the petitioner's sentencing occurred in 1997, the court applies Rule 35 as it existed in
    1997.") (citing Um``ted States v. Arrous, 
    320 F.3d 355
    , 359 (2d Cir. 2003) (applying an old version of
    Rule 35 when the defendant’s sentencing predated the effective date of recent amendments)); Unitea’
    States v. Jones, Crim. No. 85~412 (JHG), 
    1993 U.S. Dist. LEXIS 10144
    , at *15 (D.D.C. July 20,
    1993) (applying the 1986 version of Rule 35 because defendant was sentenced in that year), vacated
    on other grouna's, Unitea' States v. Jones, No. 93-3174, 
    1996 U.S. App. LEXIS 461
     1 (D.C. Cir. Feb.
    21, 1996). Thus, the Court may correct an "illegal sentence" under the applicable 1986 version of
    FRCrP 35.
    Next, Mr. Johnson appears to properly state a claim that his sentence was "illegal" within the
    meaning of Rule 35 (1986). A sentence is illegal for the purposes of forrner Rule 35 ifit was, for
    example, "in excess of that prescribed by the relevant statutes . . . [or] the terms of the sentence itself
    [were] legally or constitutionally invalid in any other respect." Hill v. Um``ted States, 
    368 U.S. 424
    ,
    430 (1962). Construing this pro se motion liberally, Mr. Johnson appears to argue that his sentence
    was "in excess" of what the statutes allowed or was otherwise "legally . . . invalid." Thus, l\/Ir.
    Johnson makes a proper claim under FRCrP 35 (1986).
    But Mr. Johnson’s sentence was legal. On July 31, 1986, 
    21 U.S.C. § 845
    (a) provided that
    Mr. Johnson was "subject to (1) twice the maximum punishment authorized by section 401(b) [
    21 U.S.C. § 841
    (b)], and (2) at least twice any special tenn parole authorized by section 40l(b) . . . ."
    Then-2l U.S.C. § 841(b)(1)(B), which dealt with distribution of Schedule 1 and ll drugs (which
    included phencyclidine) provided a maximum prison sentence of 15 years with a 3-year minimum
    special parole tenn. Then-21 U.S.C. § 84l(b)(1)(C), which addressed, among other things, cases
    involving "less than 50 kilograms of marijuana" provided a maximum prison sentence of 5 years and
    a minimum special tenn of 2 years. The Counts regarding marijuana involved less than 50 kilograms
    ofmarijuana. See Presentence Report 2-3. Thus, under 
    21 U.S.C. § 845
    (a) (1986), Mr. Johnson’s
    maximum possible prison sentence was 30 years and he was also subject to a 6-year minimum special
    parole tenn. See 
    id.
     at lA. Mr. Johnson’s sentence of 3 to 9 years imprisonment with a 6-year
    special parole term falls within that statutory range and is therefore legal.
    The indeterminate nature of Mr. Johnson’s sentence was also legal. Before the Federal
    Sentencing Guidelines became active in November 1987, federal sentences were subject to an
    indeterminate sentencing regime. ln 1986, 
    18 U.S.C. § 4205
    (b) stated, in pertinent part:
    (b) Upon entering a judgment of conviction, the court . . . may (1) designate in the
    sentence of imprisonment imposed a minimum tenn at the expiration of which the
    prisoner shall become eligible for parole, which tenn may be less than but shall not be
    more than one-third of the maximum sentence imposed by the court, or (2) the court
    may fix the maximum sentence of imprisonment to be served in which event the court
    may specify that the prisoner may be released on parole at such time as the [U.S.
    Parole] Commission may determine."
    The Court sentenced Mr. Johnson to a minimum of 3 years in prison, which was not more than one-
    third of the maximum sentence imposed of 9 years. The indetenninate nature of the sentence and the
    manner in which it was executed were therefore legal.
    Mr. Johnson’s suggestion that the Guidelines should apply to his sentence also fails. "As all
    the other courts of appeals to have addressed the issue agree . . . the Sentencing Guidelines apply only
    to criminal offenses committed on or after November l, 1987." Um``led States v. Hayes, 
    929 F.2d 741
    , 741 (D.C. Cir. 1991). Further, "‘[t]here is absolutely no constitutional authority for the
    proposition that the perpetrator of a crime can claim the benefit of a later enacted statute which
    lessens the culpability level of that crime after it was committed."’ 
    Id. at 742
     (quoting United States
    v_ Haines, 
    855 F.2d 199
    , 200 (5th Cir. 1988)). Mr. Johnson’s criminal conduct for which he was
    sentenced occurred before November 1, 198 7_indeed he was sentenced before that date. Tlius, Mr.
    Johnson cannot rely on the Guidelines.
    Mr. Johnson’s reliance on D.C. sentencing statutes is misplaced because he was sentenced
    under federal law, and the federal statutes under which he was sentenced allowed the tenns imposed.
    Thus, Mr. Johnson’s motion is DEN [ED. An appropriate Order will accompany this
    Memorandum Opinion.
    SO ORDERED.
    _%,. ¢ /
    7/
    Thomas F. Hogan
    UNITED STATES DISTRICT UDGE
    january 11,2011
    Copz'es To:
    GUY Q. JoHNsoN
    Reg. No. 09543_016
    ci RivERs CoRREcTioNAL iNsTiruTioN
    P.o. Box 630
    winron, NC 27936-0630