United States v. James Keith Johnson , 160 F. App'x 854 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13663
December 22, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 95-05016-CR-5-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES KEITH JOHNSON,
a.k.a. THUNDER EAGLE GHOST DANCER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 22, 2005)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
James Keith Johnson, proceeding pro se, appeals the district court’s denial of
his 18 U.S.C. § 3582(c)(2) motion for resentencing. On appeal, Johnson argues
that the district court erred by denying his § 3582(c)(2) motion in which he argued
that Amendment 674 to the United States Sentencing Guidelines retroactively
applied to his sentence and renders it unconstitutional.1 After careful review, we
affirm.2
We review a district court’s decision on a motion to reduce sentence
pursuant to 18 U.S.C. § 3582(c)(2) for abuse of discretion. United States v.
Vautier, 144 F.3d 756, 759 n. 3 (11th Cir. 1998). Abuse-of-discretion review
recognizes the range of possible conclusions the trial judge may reach.
By definition . . . under the abuse of discretion standard of review
there will be occasions in which we affirm the district court even
though we would have gone the other way had it been our call. That is
how an abuse of discretion standard differs from a de novo standard of
review. As we have stated previously, the abuse of discretion
1
Amendment 674 alters several sections of the guidelines in both technical and substan-
tive ways. U.S.S.G. App. C, Amend. 674 at 1108 (2004). The portion of Amendment 674 that is
relevant to this appeal is the addition of an application note in U.S.S.G. § 4B1.4 that addresses the
“double counting” issue that arises when a defendant is subject to mandatory minimum consecutive
sentences for violations of 18 U.S.C. § 924(c), or other firearm-related crimes, and to enhanced
guideline offense levels and an enhanced criminal history category as an armed career criminal
based on the same offense conduct, use or possession of a firearm in connection with a controlled
substance offense or crime of violence. Id. at 1110. The application note states that the
enhancements for use of a firearm in connection with the charged offense should not be applied in
conjunction with a sentence for a conviction under § 924(c) or other specified firearm-related
crimes. U.S.S.G. § 4B1.4, comment. (n. 2).
2
Johnson also argues, for the first time on appeal, that his sentence was unconstitutional
because it was enhanced based on facts that were not presented to a jury, in violation of United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). We have held that, like
with cases on collateral review, Booker does not apply retroactively to § 3582(c)(2) motions to
modify. See United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005). Accordingly, we
reject Johnson’s Booker argument without further discussion.
2
standard allows a range of choice for the district court, so long as that
choice does not constitute a clear error of judgment.
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc) (internal
quotation marks and citations omitted), cert. denied, 125 S. Ct. 2516, 161 L. Ed. 2d
1114 (2005).
Under § 3582(c)(2), a court is authorized to modify a sentence when:
a defendant who has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of
the defendant or the Director of the Bureau of Prisons, or on its own
motion, the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the extent that
they are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). “Both the language of § 3582(c)(2) and this circuit’s
precedent indicate that the sentencing court’s power to reduce a sentence is
discretionary.” Id. The applicable policy statement in this case is U.S.S.G. §
1B1.10(a), which provides:
Where a defendant is serving a term of imprisonment, and the
guideline range applicable to that defendant has subsequently been
lowered as a result of an amendment to the Guidelines Manual listed
in subsection (c) below, a reduction in the defendant's term of
imprisonment is authorized under 18 U.S.C. § 3582(c)(2). If none of
the amendments listed in subsection (c) is applicable, a reduction in
the defendant's term of imprisonment...is not consistent with this
policy statement and thus is not authorized.
3
U.S.S.G. § 1B1.10(a).
In interpreting § 1B1.10(a), we have held that a sentence may be
retroactively reduced under § 3582(c)(2) only where a court determines that “there
has been an amendment to the Sentencing Guidelines that has lowered the
guideline range applicable to that sentence and is listed under § 1B1.10(c).” United
States v. Armstrong, 347 F.3d 905, 907 (11th Cir. 2003) (emphasis added).
Amendment 674 is not listed in § 1B1.10(c). Id. Accordingly, the district court
did not abuse its discretion by denying Johnson’s motion to reduce his sentence
pursuant to § 3582(c)(2). 3
AFFIRMED.
3
We are unpersuaded by Johnson’s other challenges to the denial of his § 3582(c)(2),
including that the failure to modify his sentence is discriminatory and subjects him to double
jeopardy for plain error.
4