15-2051-cr
United States v. Johnson


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 13th day of April, two thousand sixteen.

PRESENT: ROBERT D. SACK,
                 REENA RAGGI,
                                 Circuit Judges,
                 J. PAUL OETKEN,
                                 District Judge.*
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UNITED STATES OF AMERICA,
                                 Appellee,

                           v.                                            No. 15-2051-cr

NEIL JOHNSON, AKA Daddy O,
                    Defendant-Appellant,

RAUL RIVERA,
                                 Defendant.**
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APPEARING FOR APPELLANT:                          JON L. SCHOENHORN, Jon L. Schoenhorn &
                                                  Associates, LLC, Hartford, Connecticut.
*
 The Honorable J. Paul Oetken, of the United States District Court for the Southern
District of New York, sitting by designation.
**
     The Clerk of Court is directed to amend the caption as set forth above.

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APPEARING FOR APPELLEE:                     JOHN W. LARSON, Assistant United States
                                            Attorney (Michael E. Runowicz and Marc H.
                                            Silverman, Assistant United States Attorneys, on
                                            the brief), for Deirdre M. Daly, United States
                                            Attorney for the District of Connecticut, New
                                            Haven, Connecticut.

       Appeal from an order of the United States District Court for the District of

Connecticut (Janet C. Hall, Chief Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order entered on June 18, 2015, is AFFIRMED.

       Defendant Neil Johnson stands convicted after a jury trial of conspiracy to possess

with intent to distribute more than 100 grams of heroin, see 21 U.S.C. §§ 841(a)(1),

(b)(1)(B), 846, for which he received a 320-month imprisonment sentence. Johnson

appeals the denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) and

Amendment 782 to the United States Sentencing Guidelines. We review a determination

that a defendant is ineligible for a sentencing reduction de novo. See United States v.

Christie, 736 F.3d 191, 195 (2d Cir. 2013). In so doing, we assume the parties’ familiarity

with the facts and record of prior proceedings, which we reference only as necessary to

explain our decision to affirm.

       In arguing that he was eligible for a sentence reduction under Amendment 782,

Johnson maintains that the district court (1) erroneously relied on discredited coconspirator

testimony in concluding that his base offense level was 36; and (2) downwardly departed

to adjust for any potential miscalculation in drug quantity, thereby effectively basing his



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sentence on a total offense level of 38, not 42. This argument fails because Amendment

782 does not reduce Johnson’s applicable Guideline range.                   See U.S.S.G.

§ 1B1.10(a)(2)(B) (explaining that defendant is not entitled to sentence reduction where

amendment “does not have the effect of lowering the defendant’s applicable guideline

range”); see also Dillon v. United States, 560 U.S. 817, 821 (2010) (recognizing that

§ 3582(c)(2) requires sentence reductions to be “consistent with applicable policy

statements issued by the Sentencing Commission”).

      In determining eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2), a

court properly considers “the amended guideline range that would have been applicable to

the defendant if the amendment[] to the guidelines . . . had been in effect at the time the

defendant was sentenced.” U.S.S.G. § 1B1.10(b)(1). For this purpose, a defendant’s

“applicable guideline range” is considered to be “the guideline range that corresponds to

the offense level and criminal history category determined pursuant to 1B1.1(a), which is

determined before consideration of any departure provision in the Guidelines Manual or

any variance.” Id. § 1B.1.10 cmt. n.1(A) (emphasis added).

      Here, the district court found that Johnson was responsible for trafficking 10 to 30

kilograms of heroin, resulting in a base offense level of 36. After applying aggravating

firearm and role enhancements, the court determined that Johnson’s total offense level was

42. With Johnson’s category III criminal history, this resulted in a Guidelines range of

360 months’ to life imprisonment. Had it been in effect at the time of sentencing,

Amendment 782 would have reduced Johnson’s total offense level from 42 to 40.

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Nevertheless, his applicable pre-departure Guidelines range would have remained 360

months’ to life imprisonment. See U.S.S.G. § 5, Pt. A (sentencing table). Accordingly,

the district court correctly concluded that Johnson is ineligible for a § 3582(c)(2)

reduction. See id. § 1B1.10(a)(2)(B).

       Insofar as Johnson claims eligibility because his sentence was infected by

procedural error in the district court’s use of discredited testimony in calculating his base

offense level, this argument cannot be pursued on a motion for a sentence reduction. See

United States v. Mock, 612 F.3d 133, 135 (2d Cir. 2010) (“[N]either the district court nor

this Court is free to address, in a proceeding pursuant to 18 U.S.C. § 3582(c)(2),

defendant’s arguments regarding procedural errors at his original, now-final sentencing.”).

Rather, the argument was properly raised on direct appeal, where it was rejected by this

court on the merits. See United States v. Rivera, 104 F.3d 354, 1996 WL 665721, at *1

(2d Cir. 1996) (unpublished table decision). Insofar as Johnson argues that the district

court’s subsequent departure under U.S.S.G. § 5K2.0 means that the sentence was

effectively based on a total offense level of 38, that departure is irrelevant for present

purposes, as already mentioned. See U.S.S.G. § 1B1.10 cmt. n.1(A).

       We have considered Johnson’s remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.


                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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