United States v. Johnson

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 25, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-6095 (D.C. No. 5:09-CR-00021-R-3) TUESDAY SHALON JOHNSON, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MORITZ, BALDOCK, and EID, Circuit Judges. _________________________________

Tuesday Johnson appeals the district court’s order denying her motion for a

sentence reduction under the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.

5194, 5222. We affirm.

Johnson pleaded guilty in 2009 to distributing cocaine base, also known as

crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Neither the indictment nor the

plea agreement specified a particular quantity of crack cocaine. Accordingly, the

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). statutory sentencing range for her offense was set by § 841(b)(1)(C), which

established a lower range than subsections (b)(1)(A) and (b)(1)(B) and—unlike those

sections—did not include a mandatory minimum sentence. The district court

ultimately imposed the statutory maximum sentence of 240 months. See

§ 841(b)(1)(C).

In 2019, Johnson filed a motion for a sentence reduction under the First Step

Act, which allows a district court to impose a reduced sentence if the defendant was

convicted of a covered offense committed before August 3, 2010, for which the

statutory penalties had been modified by Section 2 or 3 of the Fair Sentencing Act of

2010, Pub. L. No. 111-220, 124 Stat. 2372. The district court denied this motion,

holding that Johnson was ineligible for relief under the First Step Act because the

Fair Sentencing Act did not affect § 841(b)(1)(C)’s statutory penalties.

In her opening brief on appeal, Johnson argued that the district court erred in

finding that she was not eligible for relief under the First Step Act. But she concedes

that this argument has now been foreclosed by the Supreme Court’s recent holding in

Terry v. United States that a defendant sentenced under § 841(b)(1)(C) is not entitled

to relief under the First Step Act because “the Fair Sentencing Act modified the

statutory penalties only for subparagraph (A) and (B) crack offenses—that is, the

offenses that triggered mandatory-minimum penalties.” No. 20-5904, 2021 WL

2405145, at *5 (June 14, 2021). Because Terry conclusively resolved the only issue

2 Johnson raised in this appeal, we affirm.

Entered for the Court

Nancy L. Moritz Circuit Judge