United States v. Shawn Johnson

Eighth Circuit

United States v. Shawn Johnson

697 F.3d 1190, 2012 WL 5308039, 2012 U.S. App. LEXIS 22356

CourtCourt of Appeals for the Eighth Circuit

DecidedOctober 30, 2012

Docket12-1553

StatusPublished

Cited by6 cases

This text of 697 F.3d 1190 (United States v. Shawn Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Shawn Johnson, 697 F.3d 1190, 2012 WL 5308039, 2012 U.S. App. LEXIS 22356 (8th Cir. 2012).

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Opinion

PER CURIAM.

Shawn Johnson appeals from the district court’s 1 denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We affirm.

After Mr. Johnson pleaded guilty to possessing cocaine base (crack) with the intent to distribute it, see 21 U.S.C. § 841(a)(1), the district court sentenced him to 30 months’ imprisonment in accordance with a plea agreement that Mr. Johnson had entered into under Fed.R.Crim.P. 11(c)(1)(C). Mr. Johnson later moved for a sentence reduction based on retroactive amendments to the Sentencing Guidelines. See U.S.S.G., app. C, amend. 750. To be eligible for a reduction, Mr. Johnson had to have been sentenced “based on a sentencing range that has subsequently been lowered by the Sen- *1191 tenting Commission.” 18 U.S.C. § 3582(c)(2). He maintains that his sentence was “based on a sentencing range” because his plea agreement states that his 30-month sentence “adequately takes into account all of the factors to be considered under the advisory sentencing guidelines that apply to this offense.”

We agree with the district court that this language does not make Mr. Johnson eligible for a reduction. According to Justice Sotomayor’s concurring opinion in Freeman v. United States, — U.S. -, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), the principles of which supply the rule of decision in this case, see Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), a sentence under Rule 11(c)(1)(C) is “based on” the Guidelines if the plea agreement “expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment,” Freeman, 131 S.Ct. at 2695 (Sotomayor, J., concurring). But here, though the Guidelines were adverted to generally, there is no express connection between them and Mr. Johnson’s sentence: there was no intimation that the agreed-upon “‘sentence [was] determined pursuant to the Sentencing Guidelines.’” Cf. id. at 2699 (quoting the plea agreement in Freeman). The agreement does not “make clear that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which [Mr. Johnson] pleaded guilty,” since a Guidelines “sentencing range is [not] evident from the agreement itself.” Id. at 2697. We thus cannot say that the Guidelines “range serves as the basis or foundation for the term of imprisonment.” Id. at 2695.

Affirmed.

1

. The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa.

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PER CURIAM.

Shawn Johnson appeals from the district court’s 1 denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We affirm.

After Mr. Johnson pleaded guilty to possessing cocaine base (crack) with the intent to distribute it, see 21 U.S.C. § 841(a)(1), the district court sentenced him to 30 months’ imprisonment in accordance with a plea agreement that Mr. Johnson had entered into under Fed.R.Crim.P. 11(c)(1)(C). Mr. Johnson later moved for a sentence reduction based on retroactive amendments to the Sentencing Guidelines. See U.S.S.G., app. C, amend. 750. To be eligible for a reduction, Mr. Johnson had to have been sentenced “based on a sentencing range that has subsequently been lowered by the Sen- *1191 tenting Commission.” 18 U.S.C. § 3582(c)(2). He maintains that his sentence was “based on a sentencing range” because his plea agreement states that his 30-month sentence “adequately takes into account all of the factors to be considered under the advisory sentencing guidelines that apply to this offense.”

We agree with the district court that this language does not make Mr. Johnson eligible for a reduction. According to Justice Sotomayor’s concurring opinion in Freeman v. United States, — U.S. -, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), the principles of which supply the rule of decision in this case, see Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), a sentence under Rule 11(c)(1)(C) is “based on” the Guidelines if the plea agreement “expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment,” Freeman, 131 S.Ct. at 2695 (Sotomayor, J., concurring). But here, though the Guidelines were adverted to generally, there is no express connection between them and Mr. Johnson’s sentence: there was no intimation that the agreed-upon “‘sentence [was] determined pursuant to the Sentencing Guidelines.’” Cf. id. at 2699 (quoting the plea agreement in Freeman). The agreement does not “make clear that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which [Mr. Johnson] pleaded guilty,” since a Guidelines “sentencing range is [not] evident from the agreement itself.” Id. at 2697. We thus cannot say that the Guidelines “range serves as the basis or foundation for the term of imprisonment.” Id. at 2695.

Affirmed.

1

. The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa.

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Bluebook (online)

697 F.3d 1190, 2012 WL 5308039, 2012 U.S. App. LEXIS 22356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shawn-johnson-ca8-2012.

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