United States v. Terrance Johnson

Case: 11-51248 Document: 00512217276 Page: 1 Date Filed: 04/23/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 23, 2013
No. 11-51248
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
TERRANCE JOHNSON,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-21-1
Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
Proceeding pro se and in forma pauperis, Terrance Johnson, federal
prisoner # 83641-180, appeals the denial of his 18 U.S.C. § 3582(c)(2) motion
seeking modification of his 168-month sentence for conspiracy to possess, with
intent to distribute, crack cocaine. He sought modification of his sentence based
on Amendment 750 (amending crack cocaine Drug Quantity Table; made
retroactive by Guideline § 1B1.10(c)) to the advisory Sentencing Guidelines.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-51248 Document: 00512217276 Page: 2 Date Filed: 04/23/2013
No. 11-51248
(Johnson’s sentence had been reduced earlier pursuant to a 18 U.S.C. § 3582(c)(2)
motion.)
For this second motion, Johnson contends: the district court failed to
consider the 18 U.S.C. § 3553(a) factors or his post-sentencing conduct; and, its
determination that he poses a danger to society is “arbitrary and capricious”.
A decision whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2)
is reviewed for abuse of discretion . United States v. Evans, 587 F.3d 667, 672
(5th Cir. 2009). In determining whether to reduce a sentence, the district court
first ascertains whether defendant is eligible for a reduction and the extent of
the reduction authorized. Dillon v. United States, 130 S. Ct. 2683, 2691 (2010).
If so, the court considers any applicable § 3553(a) factors and determines
whether the authorized reduction is warranted in whole, or in part, under the
circumstances. Id. at 2692. In addition to the § 3553(a) factors, the district
court “shall consider the nature and seriousness of the danger to any person or
the community that may be posed by a reduction in the defendant’s term of
imprisonment” and “may consider post-sentencing conduct of the defendant”.
U.S.S.G. § 1B1.10, comment. n.1(B)(i-iii).
The district court “was under no obligation to reduce [Johnson’s] sentence”.
Evans, 587 F.3d at 673. The court gave due consideration to the motion as a
whole and considered the § 3553(a) factors, as well as Johnson’s record of post-
sentencing rehabilitation and the danger he posed to the community; therefore,
the court did not abuse its discretion. See United States v. Whitebird, 55 F.3d
1007, 1010 (5th Cir. 1995).
AFFIRMED.
2