                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
UNITED STATES OF AMERICA,      )
                               )
          v.                   ) Criminal Action No. 03-270 (RWR)
                               )
DAVID T. JOHNSON,              )
                               )
          Defendant.           )
______________________________)


                         MEMORANDUM ORDER

     Defendant David T. Johnson pled guilty to unlawful

possession with intent to distribute 5 grams or more of cocaine

base, 21 U.S.C. §§ 841(a)(1) and (b)(i)(B)(iii) (Count One), and

using, carrying, and possessing a firearm during a drug

trafficking offense, 18 U.S.C. § 924(c)(1) (Count Two).   He

admitted that he was accountable for 8.49 grams of crack cocaine.

He was sentenced in 2007 to the mandatory minimum 60 months on

Count One and a mandatory consecutive 60 months on Count Two. 1

Johnson was also sentenced to four years of supervised release

on Count One and three years of supervised release on Count Two,

to run concurrently.
     1
       Johnson was initially sentenced on Count One to 78 months
in 2004. However, on appeal, the D.C. Circuit remanded the case
to allow the district court to determine if Johnson would have
received a “different” or “materially more favorable” sentence
in a “post-Booker sentencing regime.” United States v. Johnson,
No. 04-3096 (D.C. Cir. June 16, 2005) (Order) (referring to the
decision in United States v. Booker, 543 U.S. 220 (2005), which
made the U.S. Sentencing Guidelines advisory and no longer
mandatory). Johnson’s sentence on Count One was subsequently
reduced to 60 months.
                               - 2 -


     Congress later enacted the Fair Sentencing Act of 2010

which increased from 5 grams to 28 grams the quantity of crack

cocaine that would trigger the 60-month mandatory minimum

sentence under 21 U.S.C. § 841(b)(1)(B)(iii).   In addition, the

United States Sentencing Commission amended and lowered the base

offense levels for crack cocaine offenses.   U.S.S.G. App. C,

Amendments 706, 711 (Nov. 1, 2007); U.S.S.G. App. C, Amendments

748, 750 (Nov. 1, 2011).   Under 18 U.S.C. § 3582(c)(2), a court

can reduce a sentence based upon a sentencing range that has

been subsequently lowered by the Sentencing Commission.    Thus,

on July 3, 2012, Johnson filed a motion under § 3582(c)(2) to

reduce his sentence on Count One, arguing that he should be re-

sentenced with an offense level of 20 and a criminal history of

I, yielding an applicable sentencing range of 33 to 41 months

imprisonment on Count One. 2

     Johnson argues that under the Fair Sentencing Act of 2010,

his “crack cocaine offense carries no mandatory minimum penalty”

because the Fair Sentencing Act “increase[ed] the amount of

crack cocaine required to trigger the mandatory minimum

sentences.”   Johnson’s Mot. to Reduce Sentence at 4.   The


     2
       Johnson’s applicable ranges of supervised release would be
at least four years, see 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B)(iii), but not more than five years, see U.S.S.G.
§ 5D1.2(a)(1); 18 U.S.C. § 3583(b)(1), on Count One, and at
least 2 years, see U.S.S.G. § 5D1.2(a)(1), but not more than
five years, see id.; 18 U.S.C. § 3583(b)(1), on Count Two.
                               - 3 -


government does not oppose recalculating the guideline range

based on a total offense level of 20 and a criminal history

category of I.   However, the government argues that the Fair

Sentencing Act is not retroactive and that 21 U.S.C. § 841

requires a minimum sentence on Count One of 60 months.

     Johnson’s 2007 sentence cannot benefit from the Fair

Sentencing Act of 2010 because the Act “is not retroactive.”

United States v. Bigesby, 685 F.3d 1060, 1066 (D.C. Cir. 2012),

cert. denied, 133 S. Ct. 981 (2013); see also id. (citing 11

other circuits that have also reached this holding).   Although,

as Johnson points out, the defendant in Bigesby sought to apply

the Fair Sentencing Act on direct appeal, while Johnson seeks to

apply the Fair Sentencing Act in a § 3582 motion, this does not

change the result.   The D.C. Circuit rejected this distinction

in United States v. Swangin, 726 F.3d 205, 206-07 (D.C. Cir.

2013): “[the defendant’s] only argument on appeal is that the

district court should have applied the Fair Sentencing Act’s new

[lower] mandatory minimum retroactively in his § 3582(c)(2)

proceeding.   This argument is foreclosed by our decisions in

United States v. Bigesby, 685 F.3d 1060 (D.C. Cir. 2012), and

United States v. Fields, 699 F.3d 518 (D.C. Cir. 2012).”    See

also United States v. Wooden, Criminal Action No. 06-152 (PLF),

2013 WL 3476148 (D.D.C. July 11, 2013).
                               - 4 -


     Nor does the Supreme Court’s decision in Dorsey v. United

States, 132 S. Ct. 2321 (2012), change the result.   “In Dorsey,

the Supreme Court held that the Fair Sentencing Act’s reduced

mandatory minimums apply to defendants sentenced after the Fair

Sentencing Act’s effective date, even if they were convicted

before that date.”   Swangin, 726 F.3d at 207 (citing Dorsey).

Here, Johnson was sentenced in 2004 and re-sentenced in 2007,

while the Fair Sentencing Act was enacted in 2010.   Therefore,

he is ineligible for a reduced sentence under the Fair

Sentencing Act, and the mandatory minimum 60-month sentence

trumps the effect of the lowered sentencing guideline range.

Accordingly, it is hereby

     ORDERED that the defendant's motion [55] to reduce his

sentence be, and hereby is, DENIED.

     SIGNED this 26th day of November, 2013.



                                       __/s/_____________
                               RICHARD W. ROBERTS
                               Chief Judge
