UNITED STATES v. JOHNSON (2021)

United States Court of Appeals, Tenth Circuit.

UNITED STATES of America, Plaintiff - Appellee, v. Tuesday Shalon JOHNSON, Defendant - Appellant.

No. 20-6095

Decided: June 25, 2021

Before MORITZ, BALDOCK, and EID, Circuit Judges. Timothy W. Ogilvie, Mary Elizabeth Walters, Office of the United States Attorney, Western District of Oklahoma, Oklahoma City, OK, for Plaintiff-Appellee. Laura Deskin, Paul Antonio Lacy, Esq., Kyle Wackenheim, Office of the Federal Public Defender, Western District of Oklahoma, Oklahoma City, OK, for Defendant-Appellant.

ORDER AND JUDGMENT *

Tuesday Johnson appeals the district court's order denying her motion for a sentence reduction under the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222. We affirm.

Johnson pleaded guilty in 2009 to distributing cocaine base, also known as crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Neither the indictment nor the plea agreement specified a particular quantity of crack cocaine. Accordingly, the statutory sentencing range for her offense was set by § 841(b)(1)(C), which established a lower range than subsections (b)(1)(A) and (b)(1)(B) and—unlike those sections—did not include a mandatory minimum sentence. The district court ultimately imposed the statutory maximum sentence of 240 months. See § 841(b)(1)(C).

In 2019, Johnson filed a motion for a sentence reduction under the First Step Act, which allows a district court to impose a reduced sentence if the defendant was convicted of a covered offense committed before August 3, 2010, for which the statutory penalties had been modified by Section 2 or 3 of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. The district court denied this motion, holding that Johnson was ineligible for relief under the First Step Act because the Fair Sentencing Act did not affect § 841(b)(1)(C)’s statutory penalties.

In her opening brief on appeal, Johnson argued that the district court erred in finding that she was not eligible for relief under the First Step Act. But she concedes that this argument has now been foreclosed by the Supreme Court's recent holding in Terry v. United States that a defendant sentenced under § 841(b)(1)(C) is not entitled to relief under the First Step Act because “the Fair Sentencing Act modified the statutory penalties only for subparagraph (A) and (B) crack offenses—that is, the offenses that triggered mandatory-minimum penalties.” No. 20-5904, ––– U.S. ––––, 141 S.Ct. 1858, 1864, ––– L.Ed.2d –––– (June 14, 2021). Because Terry conclusively resolved the only issue

Johnson raised in this appeal, we affirm.

Nancy L. Moritz, Circuit Judge