United States v. Kenneth Johnson ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2005
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K ENNETH R AY JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 3:02-cr-50056-1—Philip G. Reinhard, Judge.
A RGUED M ARCH 3, 2009—D ECIDED S EPTEMBER 2, 2009
Before B AUER, K ANNE and W OOD , Circuit Judges.
P ER C URIAM. Kenneth Johnson, who was convicted in
2003 of distributing crack, moved pro se for a sentence
reduction under 18 U.S.C. § 3582(c)(2) after the Sen-
tencing Commission retroactively reduced the offense
levels for some crack offenses. The district court con-
cluded that he was eligible for a 15-month reduction, but
announced that it was inclined to grant only a 3-month
reduction because of his extensive criminal history. At
2 No. 08-2005
that juncture, however, the court sua sponte appointed
counsel, who argued for a greater reduction. The court
considered counsel’s argument but was not persuaded
that a reduction beyond 3 months was appropriate. On
appeal, Johnson argues that the district court abused its
discretion because, he insists, the court (1) should have
appointed counsel before making any decision on his
motion, and (2) did not adequately weigh his pur-
portedly exemplary prison conduct. We affirm the
court’s ruling.
Johnson and another individual sold crack to undercover
agents in June 2002, and Johnson made an additional
sale in July 2002. In December 2002, Johnson pleaded
guilty to one count of distribution. See 21 U.S.C. § 841(a)(1).
That count involved at least 50 grams of crack and could
have triggered a statutory minimum of 20 years since
Johnson already had a felony drug conviction, but as
part of the plea agreement, the government elected not
to file an enhancement information under 21 U.S.C. § 851.
See 21 U.S.C. §§ 841(b)(1)(A)(viii), 851. But even with-
out the prior-conviction enhancement, Johnson faced a
statutory minimum of 10 years’ imprisonment. Id.
§ 841(b)(1)(A)(viii). The district court, applying the 2002
edition of the sentencing Guidelines, assigned Johnson a
base offense level of 32, see U.S.S.G. § 2D1.1(a)(3), (c)(4),
and subtracted three levels for acceptance of responsi-
bility, see id. § 3E1.1, which yielded a total offense level of
29. The court assigned Johnson a total of 11 criminal
history points, and thus a criminal history category of V,
for convictions that included unlawful use of a weapon
by a felon, driving with a suspended license, attempted
No. 08-2005 3
obstruction of justice, operating an uninsured vehicle,
possessing marijuana, and driving under the influence.
The probation officer had also reported numerous other
driving, theft, and drug convictions for which Johnson
did not receive criminal history points. Johnson’s impris-
onment range was 140 to 175 months, but the govern-
ment moved under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1
for a sentence at 75% of either the statutory minimum or
the low end of the Guidelines range, whichever was
greater, because Johnson had provided substantial assis-
tance in other investigations. At sentencing in July 2003,
the district court accepted the plea agreement and im-
posed a term of 105 months—75% of 140 months.
In late 2007, the Sentencing Commission reduced the
base offense level for most crack offenses by two levels, see
U.S.S.G. Supp. to App. C, pp. 226-31 (2007) (Amendment
706), and in early 2008 that amendment was made retro-
active, U.S.S.G. Supp. to App. C, p. 253 (2008) (Amend-
ment 713). In light of this change, Johnson filed a pro se
motion for a sentence reduction under § 3582(c)(2). He
did not ask that counsel be appointed, but he did request
that the district court take into account his lack of legal
knowledge. The government responded that the retro-
active amendment had reduced Johnson’s Guidelines
range to 120 to 150 months’ imprisonment, and that it
would be appropriate for the court to reduce his sentence
to 90 months, a term equal to 75% of both the statutory
minimum and the low end of the revised range. But the
district court granted Johnson only a 3-month reduction,
to 102 months. The court explained that it had reviewed
Johnson’s original presentence report, his prison progress
4 No. 08-2005
report, and a follow-up report from the probation office
and concluded that he did not deserve a reduction to
75% of his new Guidelines range because his extensive
criminal history and repeated serious driving offenses
showed that he posed a risk to the community. The
court also noted that it did not “contemplate any further
reduction” when it granted the government’s motion for
a reduction at Johnson’s original sentencing. Finally, the
court directed the public defender’s office to notify John-
son about the ruling and, if Johnson wished, file an ob-
jection on his behalf.
Johnson, through counsel, did object and also asked the
district court to formally appoint the public defender’s
office to “assist him in the presentation of his motion
for relief.” The court then appointed counsel who filed a
written submission arguing that Johnson deserved a
greater sentence reduction because, among other things,
he had completed numerous prison courses designed to
prepare him for release and to address his narcotics
addictions, he had been commended for working as a
truck driver for the Bureau of Prisons, and he had
been transferred to a less-secure prison. The court re-
viewed this submission, but then issued a second
order announcing that it would not further reduce John-
son’s sentence for the reasons articulated in its
previous ruling.
On appeal, Johnson first contends that the district
court abused its discretion by appointing counsel only
after initially deciding that he would receive a 3-month
reduction. Johnson contends that after United States v.
No. 08-2005 5
Booker, 543 U.S. 220 (2005), district courts make fact-specific
conclusions when addressing § 3582(c)(2) motions, and
thus he needed counsel’s assistance to effectively
present information regarding his criminal history and
his progress in prison. Johnson adds that the appoint-
ment of counsel after the initial order did not rectify
this purported error because by that time, Johnson
insists, the court already had decided not to further
reduce his sentence.
A motion under § 3582(c)(2) does not trigger the pro-
cedural protections that would apply at a sentencing
hearing. United States v. Young, 555 F.3d 611, 614-15 (7th
Cir. 2009); United States v. Tidwell, 178 F.3d 946, 949 (7th
Cir. 1999). There is no right to counsel in a § 3582(c)(2)
proceeding, and the decision whether to appoint counsel
is left to the district court’s discretion. United States v.
Forman, 553 F.3d 585, 590 (7th Cir. 2009); Tidwell, 178 F.3d
at 949. In this case, Johnson did not even ask that counsel
be appointed when he filed his pro so motion, so it is
difficult to see how the district court could possibly
have abused its discretion in not making an appoint-
ment before delivering its preliminary ruling. Regardless,
by sua sponte involving the public defender’s office
after announcing its preliminary decision, the court
rectified any disadvantage to Johnson. The court had
already reviewed the original and updated reports form
the probation office and assessed Johnson’s progress in
prison, and with that information had concluded that
Johnson should receive only a 3-month reduction. Then,
after affording Johnson an opportunity, through counsel,
to make arguments regarding that information and intro-
6 No. 08-2005
duce new information, the court determined that the
same 3-month reduction was appropriate. The court’s
decision to afford Johnson an opportunity to argue that
he deserved a still-larger reduction undermines his argu-
ment that the court’s first order was irrevocable. And
because counsel presented that argument, Johnson
wound up receiving all of the benefits of representation,
even though the court did not appoint counsel prior to
the first order. There was no abuse of discretion.
As to the merits, Johnson argues that the district court
abused its discretion by subtracting only 3 months from
his sentence, instead of decreasing it to 90 months. As
Johnson explains his argument, he contends that the
court (1) failed to “preserve the bargain” he struck with
the government in his plea agreement for his coopera-
tion, and (2) gave short shrift to the factors under 18 U.S.C.
§ 3553(a) by not mentioning his exemplary conduct
in prison or explaining why the threat he posed to the
public outweighed his good behavior.
A district court’s decision to reduce a sentence under
§ 3582(c)(2) is reviewed for abuse of discretion. See Tidwell,
178 F.3d at 949; United States v. Williams, 549 F.3d 1337,
1338 (11th Cir. 2008). For a movant like Johnson, who
received a below-Guidelines sentence before the
Supreme Court decided United States v. Booker, 543 U.S.
220 (2005), the ratio of the revised prison term to the
low end of the new Guidelines range may be made to
equal the corresponding ratio from the original sen-
tencing. See U.S.S.G. § 1B1.10(b)(2)(B) (2008). But the
district court is not bound by that ratio; instead, the
No. 08-2005 7
court must determine the extent of the reduction, if any,
by considering the factors listed in 18 U.S.C. § 3553(a),
the movant’s conduct while imprisoned, and the risk his
early release would pose to public safety. See 18 U.S.C.
§ 3582(c)(2); U.S.S.G. § 1B1.10(b)(2)(B) & cmt. n.1(B)(ii),
(B)(iii); Young, 555 F.3d at 614; United States v. Lawrence,
535 F.3d 631, 637 (7th Cir. 2008). Thus, the district court
was not required to reduce Johnson’s sentence to 75%
of his new Guidelines range because § 3582(c)(2) leaves
the extent of the reduction within the court’s discretion.
See Young, 555 F.3d at 614.
And in this case the district court satisfactorily exer-
cised that discretion. The court concluded, after
reviewing Johnson’s presentence report and his prison
record, that he deserved no more than a 3-month reduction
to 102 months’ imprisonment because his extensive
criminal history and repeated serious driving offenses
showed that he posed a risk to the community. Then,
after appointing counsel, the court rejected, for the
same reasons, Johnson’s argument that his exemplary
prison conduct warranted a greater reduction. The court
was not required to explain at length why Johnson’s
prison record didn’t warrant a greater reduction; what
is necessary is simply a statement of reasons that is con-
sistent with § 3553(a) and not one that analyzes the rela-
tionship between each factor. See United States v. Harris,
490 F.3d 589, 597 (7th Cir. 2007); United States v. Dean,
414 F.3d 725, 729 (7th Cir. 2005). And regardless
whether the government thought that Johnson should
receive the entire reduction to which he was eligible, the
district court was not obligated to accept the govern-
8 No. 08-2005
ment’s recommendation. See Young, 555 F.3d at 614;
United States v. Marty, 450 F.3d 687, 691 (7th Cir. 2006);
United States v. Lopez, 430 F.3d 854, 857 (7th Cir. 2005).
We A FFIRM the judgment of the district court.
9-2-09