                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2009

USA v. Robert Johnson
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2958




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-2958


                           UNITED STATES OF AMERICA

                                            v.

                                 ROBERT JOHNSON,
                                           Appellant



                      Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                      (D.C. Criminal Action No. 3-05-cr-00409-1)
                     District Judges: Honorable Thomas I. Vanaskie


                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 26, 2009


              Before: RENDELL, AMBRO, and JORDAN, Circuit Judges

                             (Opinion filed: March 26, 2009)



                                        OPINION

AMBRO, Circuit Judge

      Robert Johnson pled guilty to one count of conspiracy to possess with the intent to

distribute crack cocaine in violation of 21 U.S.C. §§ 841 and 846. In April 2007, the

District Court sentenced him to 54 months’ imprisonment. In 2008, he filed a motion
pursuant to 18 U.S.C. § 3582(c)(2) (“Modification of an imposed term of imprisonment”)

to reduce his sentence in light of Amendment 706 to the U.S. Sentencing Commission

Guidelines (the “crack amendment,” effective November 2007). The crack amendment

applies retroactively and generally reduces base offense levels in crack cocaine cases by

two levels. See generally United States v. Wise, 515 F.3d 207, 221 (3d Cir. 2008)

(discussing that the crack amendment became retroactive on March 3, 2008). The

District Court denied the motion. Thereafter, Johnson lodged this appeal.1 He argues that

the District Court erred by improperly treating Guidelines § 1B1.10(b)(2)(B) as

mandatory, rather than as advisory, in denying his motion.

       We review de novo a district court’s interpretation of the Sentencing Guidelines.

United States v. Wood, 526 F.3d 82, 85 (3d Cir. 2008). We have not explicitly set forth

the applicable standard of review of a district court’s decision to grant or deny a sentence

modification pursuant to 18 U.S.C. § 3582(c)(2), but other courts that have considered

this issue apply an abuse-of-discretion standard. United States v. Sharkey, 543 F.3d 1236,

1238 (10th Cir. 2008) (citing United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir.

1996)); United States v. Jones, 548 F.3d 1366, 1368 n.1 (11th Cir. 2008). We will apply

the same standard here.

       A district court may modify an imposed prison term “in the case of a defendant

who has been sentenced to a term of imprisonment based on a sentencing range that has



       1
        The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3582. We have
appellate jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                             2
subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). A

court “may” make this modification “after considering the factors set forth in section

[18 U.S.C. §] 3553(a) to the extent they are applicable, if such a reduction is consistent

with applicable policy statements issued by the Sentencing Commission” under

Guidelines § 1B1.10. Id. Guidelines § 1B1.10(b)(2)(B) reads:

       If the original term of imprisonment imposed was less than the term of
       imprisonment provided by the guideline range . . . at the time of sentencing,
       a reduction comparably less than the amended guideline range . . . may be
       appropriate. However, if the original term of imprisonment constituted a
       non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and
       United States v. Booker, 543 U.S. 220 (2005), a further reduction generally
       would not be appropriate.

(Emphasis added.)

       Johnson’s initial recommended Guidelines range was 108 to 135 months’

imprisonment. The Court sentenced him to a non-Guidelines sentence of 54 months’

imprisonment, far below the recommended range, based on the Government’s formal

motion for downward departure for cooperation and the applicable § 3553(a) sentencing

factors. After adoption of the crack amendment, Johnson’s revised Guidelines range,

prior to any departure, was 87 to 108 months’ imprisonment. This lower range resulted

from a two-level change in Johnson’s base offense level, from 29 to 27.

       In denying Johnson’s motion for a reduction in sentence, the District Court did not

indicate that it was prohibited from further reducing Johnson’s sentence. Rather, it noted

that a further reduction “generally would not be appropriate” under the Guidelines policy

set forth in § 1B1.10. It continued, stating:

                                                3
       In imposing the sentence [of 54 months’ imprisonment,] I considered all the
       pertinent factors to determine a sentence that was not greater than necessary
       to achieve the objectives of the sentencing statute. The revision of the
       guideline range does not alter the conclusion that the sentence of 54 months
       is reasonable considering all the circumstances.[ 2]

       Given the District Court’s statements regarding the appropriateness of Johnson’s

sentence, we do not believe the Court improperly treated Guidelines § 1B1.10(b)(2)(B) as

mandating a specific result, nor did it abuse its discretion in denying Johnson’s motion to

reduce his sentence further, which, in any event, remained well below the revised

Guidelines range.




       2
       At Johnson’s sentencing hearing, the District Judge took great care to balance the
applicable 18 U.S.C. § 3553(a) sentencing factors before arriving at his sentence. The
Court specifically noted that, in determining an appropriate sentence, it could not
overlook the seriousness of the offense, particularly because a firearm was involved.
Nonetheless, the Court granted Johnson “a significant departure,” and over two years
“below the range that had been asked for by the Government.”

                                             4
