UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

Crim. No. 86-166 (TFH)
vs.

GUY Q. JOHNSON,

Defendant.

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MEMORANDUM OPINION

Pending before the Court is Mr. Johnson’s Pro Se Motion to Correct an Illegal Sentence
under Fed. R. Crim. P. 35. The Government opposes the motion, arguing that the Court should
construe the motion as a habeas motion under 28 U.S.C. § 2255. After careful consideration of the
parties’ submissions and the record of this case, the Court allows Mr. Johnson’s motion to continue
under FRCrP 35 but DENlES the motion because his sentence was legal.

I. Background

Defendant was charged by indictment in this case with three counts of distribution of
phencyclidine near a school and three counts of distribution of marijuana near a school in violation of
21 U.S.C. § 845(a). He was tried byjury on July 7, 1986 and July 8, 1986 with the Honorable
Gerhard A. Gesell presiding. He was found guilty on all counts. On July 31, 1986, Judge Gesell
sentenced defendant to 3 to 9 years imprisonment on each count, with the sentences to run

concurrently, and to a 6 year "special parole" term. On March 23, l987, defendant’s convictions

were affirmed on appeal.

 

Mr. Johnson filed this motion in September 20()7. He argues-or at least suggests_that his
sentence was illegal because (i) federal law did not allow for a minimum or maximum prison term of
3 or 9 years, respectively; (ii) although minimum and maximum sentences were available under D.C.
law, "special parole" terms did not exist under D.C. law; and (iii) the Federal Sentencing Guidelines
(the "Guidelines") should apply to his sentence, thus resulting in a lower sentence.

II. Analysis

The version of FRCrP 35 that existed on July 31, 1986-the date of Mr. Johnson`s
sentencing_provided that the Court "may correct an illegal sentence at any time." Mr. Johnson can
rely on this old version. See Ba_vlor v. Unz`ted Slates, 314 F. Supp. 2d 47, 50 n.l (D.D.C. 2004)
("Because the petitioner's sentencing occurred in 1997, the court applies Rule 35 as it existed in
1997.") (citing Um`ted States v. Arrous, 320 F.3d 355, 359 (2d Cir. 2003) (applying an old version of
Rule 35 when the defendant’s sentencing predated the effective date of recent amendments)); Unitea’
States v. Jones, Crim. No. 85~412 (JHG), 1993 U.S. Dist. LEXIS 10144, at *15 (D.D.C. July 20,
1993) (applying the 1986 version of Rule 35 because defendant was sentenced in that year), vacated
on other grouna's, Unitea' States v. Jones, No. 93-3174, 1996 U.S. App. LEXIS 461 1 (D.C. Cir. Feb.
21, 1996). Thus, the Court may correct an "illegal sentence" under the applicable 1986 version of
FRCrP 35.

Next, Mr. Johnson appears to properly state a claim that his sentence was "illegal" within the
meaning of Rule 35 (1986). A sentence is illegal for the purposes of forrner Rule 35 ifit was, for
example, "in excess of that prescribed by the relevant statutes . . . [or] the terms of the sentence itself

[were] legally or constitutionally invalid in any other respect." Hill v. Um`ted States, 368 U.S. 424,

430 (1962). Construing this pro se motion liberally, Mr. Johnson appears to argue that his sentence

was "in excess" of what the statutes allowed or was otherwise "legally . . . invalid." Thus, l\/Ir.
Johnson makes a proper claim under FRCrP 35 (1986).

But Mr. Johnson’s sentence was legal. On July 31, 1986, 21 U.S.C. § 845(a) provided that
Mr. Johnson was "subject to (1) twice the maximum punishment authorized by section 401(b) [21
U.S.C. § 841(b)], and (2) at least twice any special tenn parole authorized by section 40l(b) . . . ."
Then-2l U.S.C. § 841(b)(1)(B), which dealt with distribution of Schedule 1 and ll drugs (which
included phencyclidine) provided a maximum prison sentence of 15 years with a 3-year minimum
special parole tenn. Then-21 U.S.C. § 84l(b)(1)(C), which addressed, among other things, cases
involving "less than 50 kilograms of marijuana" provided a maximum prison sentence of 5 years and
a minimum special tenn of 2 years. The Counts regarding marijuana involved less than 50 kilograms
ofmarijuana. See Presentence Report 2-3. Thus, under 21 U.S.C. § 845(a) (1986), Mr. Johnson’s
maximum possible prison sentence was 30 years and he was also subject to a 6-year minimum special
parole tenn. See id. at lA. Mr. Johnson’s sentence of 3 to 9 years imprisonment with a 6-year
special parole term falls within that statutory range and is therefore legal.

The indeterminate nature of Mr. Johnson’s sentence was also legal. Before the Federal
Sentencing Guidelines became active in November 1987, federal sentences were subject to an
indeterminate sentencing regime. ln 1986, 18 U.S.C. § 4205(b) stated, in pertinent part:

(b) Upon entering a judgment of conviction, the court . . . may (1) designate in the
sentence of imprisonment imposed a minimum tenn at the expiration of which the
prisoner shall become eligible for parole, which tenn may be less than but shall not be
more than one-third of the maximum sentence imposed by the court, or (2) the court
may fix the maximum sentence of imprisonment to be served in which event the court
may specify that the prisoner may be released on parole at such time as the [U.S.

Parole] Commission may determine."

 

The Court sentenced Mr. Johnson to a minimum of 3 years in prison, which was not more than one-
third of the maximum sentence imposed of 9 years. The indetenninate nature of the sentence and the
manner in which it was executed were therefore legal.

Mr. Johnson’s suggestion that the Guidelines should apply to his sentence also fails. "As all
the other courts of appeals to have addressed the issue agree . . . the Sentencing Guidelines apply only
to criminal offenses committed on or after November l, 1987." Um`led States v. Hayes, 929 F.2d
741, 741 (D.C. Cir. 1991). Further, "‘[t]here is absolutely no constitutional authority for the
proposition that the perpetrator of a crime can claim the benefit of a later enacted statute which
lessens the culpability level of that crime after it was committed."’ Id. at 742 (quoting United States
v_ Haines, 855 F.2d 199, 200 (5th Cir. 1988)). Mr. Johnson’s criminal conduct for which he was
sentenced occurred before November 1, 198 7_indeed he was sentenced before that date. Tlius, Mr.
Johnson cannot rely on the Guidelines.

Mr. Johnson’s reliance on D.C. sentencing statutes is misplaced because he was sentenced
under federal law, and the federal statutes under which he was sentenced allowed the tenns imposed.
Thus, Mr. Johnson’s motion is DEN [ED. An appropriate Order will accompany this

Memorandum Opinion.

SO ORDERED.

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7/

Thomas F. Hogan
UNITED STATES DISTRICT UDGE

january 11,2011

Copz'es To:

GUY Q. JoHNsoN
Reg. No. 09543_016

ci RivERs CoRREcTioNAL iNsTiruTioN
P.o. Box 630

winron, NC 27936-0630

 

