     Case: 19-10572      Document: 00515151151         Page: 1    Date Filed: 10/08/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 19-10572                            FILED
                                  Summary Calendar                    October 8, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

KINTE L. JOHNSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:05-CR-125-1


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Kinte L. Johnson appeals the denial of his second motion under the First
Step Act of 2018 to reduce the 120-month sentence imposed on his guilty plea
conviction for possessing a controlled substance with intent to distribute. See
Pub. L. No. 115-391, 132 Stat. 5194 (2018). We affirm.
       Johnson first moved for a post-conviction sentence reduction in January
2019, invoking the First Step Act. The district court denied Johnson’s motion,


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 19-10572     Document: 00515151151     Page: 2   Date Filed: 10/08/2019


                                  No. 19-10572

explaining that Johnson failed to show that he was entitled to relief under the
Act. First, the court observed that § 3582(c)(1)(B) of the Act was not a basis for
relief because Johnson had not moved under Federal Rule of Criminal
Procedure 35 or “any statute authorizing post-judgment relief.” Second, the
district court reasoned that Johnson was subject to a mandatory 120-month
minimum sentence that was not affected by the Act. Therefore, Johnson’s
motion was denied on the merits. Johnson did not appeal the district court’s
original decision.
      Johnson moved for a post-conviction sentence reduction, under the same
theory, in May 2019. The district court denied the second motion for the same
reasons assigned when denying the first motion.
      The First Step Act stipulates that “[n]o court shall entertain a motion
made under this section to reduce a sentence . . . if a previous motion made
under this section to reduce the sentence was” denied on the merits. First Step
Act of 2018, § 404(c), 132 Stat. at 5222. Because Johnson was not entitled to
move for relief under the First Step Act, see id., we do not disturb the district
court’s judgment denying his second motion, see United States v. Ho, 311 F.3d
589, 602 n.12 (5th Cir. 2002).
      AFFIRMED.




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