                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


  UNITED STATES OF AMERICA

                  v.                                         Crim. Action No. 2-310 (JDB)
  KEVIN JOHNSON,
            Defendant.


                            MEMORANDUM OPINION & ORDER

       Kevin Johnson moves to reduce his sentence under the First Step Act of 2018. Mot. to

Reduce Sentence under 18 U.S.C. § 3582(c)(1)(B) & the First Step Act of 2018 (“Mot. to Reduce”)

[ECF No. 46] at 1. The government opposes the motion. Gov’t’s Opp’n to Def.’s Pro Se Mot. to

Reduce Sentence Pursuant to the First Step Act (“Gov’t’s Opp’n”) [ECF No. 48] at 1. For the

reasons explained below, Johnson is ineligible for relief under the First Step Act and his motion

for a reduced sentence will therefore be denied.

       I.       Background

       On July 18, 2002, Johnson was charged with three counts: (1) unlawful possession with

intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); (2) using, carrying, and

possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1); and

(3) unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). See Indict. [ECF No. 6] at 1–2. A jury found Johnson guilty on all counts, see

Judgment [ECF No. 27] at 1, and in February 2003, the Court imposed a sentence of 322 months’

incarceration, consisting of 262 months for heroin possession; 120 months on the felon-in-

possession charge, to run concurrently to the heroin count; and 60 months for possession of a

firearm during a drug-trafficking offense, to run consecutively to the two other counts, id. at 2.


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          On February 12, 2020, Johnson filed a pro se motion to reduce his sentence under 18 U.S.C.

§ 3582(c)(1)(B) and the First Step Act of 2018. Mot. to Reduce at 1. Although Johnson

acknowledges that he “is not well versed in the law,” he asks the Court “to look at his sentence to

see if he benefits from any of the sentencing reforms and guideline reductions.” Id.1 Having

reviewed the relevant statutory and Guidelines provisions, as well as the record below, the Court

concludes that Johnson is not entitled to any reduction in his sentence.

          II.    Analysis

          Section 404 of the First Step Act of 2018, Pub. L. No. 115-391 § 404, 132 Stat. 5194, 5222,

permits a sentencing court to “impose a reduced sentence as if sections 2 and 3 of the Fair

Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed.” 132

Stat. at 5222. Sections 2 and 3 of the Fair Sentencing Act, in turn, reduced the disparity between

sentences for cocaine base (i.e., “crack cocaine”) offenses and powder cocaine offenses by

increasing the amount of cocaine base needed to trigger five-year and ten-year mandatory

minimum sentences and by eliminating mandatory minimum sentences for simple possession

offenses. See Fair Sentencing Act of 2010, Pub. L. No. 111-220 §§ 2–3, 124 Stat. 2372, 2372

(2010).

          Relief under Section 404 of the First Step Act is limited to sentences imposed for cocaine

base offenses. Johnson committed no such crime: he was convicted of possession with intent to

distribute heroin and two other firearm-related offenses. Judgment at 1. The Fair Sentencing Act,

and thus the First Step Act, have no bearing on those offenses, and the Court cannot provide him

any relief under those provisions. See, e.g., United States v. Richardson, No. 99-cr-264-8, 2019

WL 4889280, at *6 (D. Conn. Oct. 3, 2019) (“Fair Sentencing Act did not modify the penalties for


          The Court notes that an attorney from the Federal Public Defender’s Office was notified about Johnson’s
          1

pro se motion and declined to file a supplement in support. See Gov’t’s Opp’n at 2 n.1.

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crimes involving heroin”); United States v. Moss, Case No. 12-CR-30305-NJR, 2019 WL

4735907, at *1 (S.D. Ill. Sept. 27, 2019) (“[Defendant] is not entitled to relief under the First Step

Act because her offenses involved heroin and not crack-cocaine.”); United States v. Roberts, No.

1:15-CR-10057-JDB-1, 2019 WL 3850545, at *1 (W.D. Tenn. Aug. 15, 2019) (“The crime for

which [defendant] was convicted involved heroin rather than crack cocaine; accordingly, it was

not a ‘covered offense’ for [First Step Act] purposes.”).2

         Johnson briefly raises two other points in his motion. First, he notes that, since his

sentencing in 2003, the Guidelines have been adjusted twice—“in ‘2008’ and ‘2016’”—and

inquires whether he may benefit from those reductions. Mot. to Reduce at 1. But Johnson does

not identify which changes he thinks might entitle him to a sentence reduction. “Even pro se

appellants must offer more than just generalized assertions of error, and must support their

arguments with citations to the record and relevant authorities.” Rodriguez v. Bakke, 84 Fed.

App’x 685, 687 (7th Cir. 2003). Moreover, two years ago, this Court reviewed a motion that

Johnson had filed for a sentence reduction under 18 U.S.C. § 3582(c)(2). See Apr. 30, 2018 Mem.

Op. & Order [ECF No. 45]. At that time, the probation office prepared a memorandum showing

that, as of June 14, 2017, the Guidelines calculation for Johnson’s heroin offenses remained the

same—262–327 months’ imprisonment. Mem. from Senior U.S. Probation Officer [ECF No. 43]

at 1. Given the Court’s prior determinations and Johnson’s failure to allude to any specific

Guidelines changes, let alone ones after June 2017, the Court concludes that this passing argument

cannot succeed.

         Second, Johnson argues that he was “found to have possessed 2.3 [grams] of heroin which


         2
           Johnson also refers to 18 U.S.C. § 3582(c)(1)(B) in the title of his motion, which provides that “the court
may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute” or Federal Rule
of Criminal Procedure 35. Section 3582(c)(1)(B) thus provides no independent basis for Johnson’s claim to a sentence
reduction, and because the First Step Act does not permit a modification, Johnson’s argument founders.

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he believes does not trigger a mandatory minimum with today’s statute.” Mot. to Reduce at 1.

Johnson was convicted under 21 U.S.C. § 841(a)(1), (b)(1)(C), which sets no statutory minimum

sentence, but rather caps the prison term for an individual with “a prior conviction for a felony

drug offense” at thirty years.      Johnson identifies no previous mandatory minimum for

§ 841(b)(1)(C) that may have been in effect in 2003, nor is the Court aware of any. It is also

unlikely that Johnson could have benefitted from such a reduction unless it were explicitly made

retroactive; indeed, such was the case with the mandatory minimums for crack-cocaine offenses

prior to the First Step Act. See United States v. Swangin, 726 F.3d 205, 207 (D.C. Cir. 2013)

(“[A] defendant convicted and sentenced prior to the Fair Sentencing Act’s effective date cannot

benefit from the Act’s new mandatory minimums in a subsequent proceeding.”).                Finally,

Johnson’s sentence on his heroin count was driven not by statutory minimums, but by the

Guidelines, see Tr. of Sentencing Hr’g [ECF No. 49] at 3:19–6:16, 13:22–15:3, which the Court

has already determined provide no basis for present relief.

       The Court thus concludes that no relief is available under either the First Step Act or under

the two additional theories that Johnson offers.

       III.    Conclusion

       For the foregoing reasons, it is hereby ORDERED that [46] Johnson’s motion to reduce

his sentence is DENIED.

       SO ORDERED.


                                                                                /s/
                                                                         JOHN D. BATES
                                                                    United States District Judge
Dated: April 7, 2020




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