United States v. Johnson

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 2, 2017
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 16-6372
v. (D.C. No. 5:94-CR-00064-C-1)
(W.D. Okla.)
TIMOTHY SHAUN JOHNSON,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, McKAY, and McHUGH, Circuit Judges.
Timothy Johnson appeals the district court’s dismissal of his motion for a
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Because we agree with
the district court that Mr. Johnson was ineligible for any reduction, we affirm.
In 1994, a jury convicted Mr. Johnson of numerous charges relating to a
conspiracy to distribute cocaine. The district court found his guidelines range to
be 360 months to life imprisonment and sentenced him to 410 months’
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
imprisonment. After the promulgation of Amendments 706 and 782 to the
Guidelines, Mr. Johnson filed motions to reduce his sentence under 18 U.S.C.
§ 3582. The district court dismissed his motions for lack of jurisdiction, finding
that applying the amendments would not yield a lower guidelines range.
We see no error in the district court’s analysis. Mr. Johnson does not
dispute that his amended guidelines range would remain 360 months to life after
applying the amendments. Nor does he contest the rule that a district court has no
authority to grant a § 3582 motion if the relevant amendments do “not have the
effect of lowering the defendant’s applicable guideline range.” USSG
§ 1B1.10(2)(a)(B); see, e.g., United States v. Sharkey, 543 F.3d 1236, 1239 (10th
Cir. 2009). Indeed, Mr. Johnson does not explain what relief he seeks from this
court. He never explicitly requests, for example, reversal of the district court’s
decision. But see Fed. R. App. P. 28(a)(9) (requiring appellant’s brief to contain
“a short conclusion stating the precise relief sought”). And the principal
argument he seems to advance, a constitutional attack against his sentence, is not
properly raised in a § 3582 motion. See United States v. Gay, 771 F.3d 681,
685–86 (10th Cir. 2014). In light of all this, we have no basis to overturn the
district court’s dismissals.
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AFFIRMED.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Chief Judge
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