The opinion of the court was delivered by: William W. Caldwell United States District Judge
Defendant, Eric D. Johnson, has filed a pro se motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence based on amendment 599 to the sentencing guidelines. Defendant also wants his resentencing to take into account United States v. Booker, 543 U.S. 229, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Hicks, 472 F.3d 1167, 1169 (9th Cir. 2007). We will deny the motion.
In June 1998, Defendant was indicted. On September 29, 1998, a superseding four-count indictment was filed. Count I charged Defendant with forcibly assaulting and interfering on June 1, 1998, with federal marshals in the performance of their official duties in violation of 18 U.S.C. § 111. Count II charged him with distributing in excess of five grams of crack cocaine from May 31, 1998, to June 5, 1998, in violation of 21 U.S.C. § 841. Count III charged him with using and carrying a firearm on June 1, 1998, in relation to a drug-trafficking crime and to a crime of violence, assault on a federal officer, in violation of 18 U.S.C. § 924(c)(1). Count IV charged him with knowingly making a false statement on June 5, 1998, to federal marshals that he had never had a gun, in violation of 18 U.S.C. § 1001.
In December 1998, a jury found Defendant guilty on all four counts. As pertinent here, part of Defendant's offence conduct was firing ten rounds from an handgun at seven federal agents. The agents were driving in two cars on a street in Harrisburg in the early morning hours, looking for fugitives. Defendant was apparently upset that their presence had interrupted one of his drug deals. The presentence report (PSR) gave Defendant an offense level of 32 and a criminal history category of III for a guideline range of 151 to 188 months.
The probation officer believed that, even with the mandatory, consecutive sixty-month sentence for the section 924(c)(1) offense, this range did not capture the seriousness of Defendant's conduct in shooting at seven individuals. He therefore recommended an upward departure from the guideline range by increasing the offense level to 34, giving Defendant a range of 188 months to 235 months. The probation officer also noted that "[a] defendant who merely possessed, but did not discharge, a firearm would be in the same guideline range . . . ." ("Sentencing Recommendation," attached at the back of the PSR).
The two-level increase was based on U.S.S.G. § 5K2.6, a policy statement which authorizes upward departures for the use or possession of "Weapons and Dangerous Instrumentalities." It provides as follows:
If a weapon or dangerous instrumentality was used or possessed in the commission of the offense the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the dangerousness of the weapon, the manner in which it was used, and the extent to which its use endangered others. The discharge of a firearm might warrant a substantial sentence increase.
U.S.S.G. § 2A2.2(b)(2) was then used to quantify the increase in the offense level. Section 2A2.2(b)(2) permits a five-level increase in the offense level for aggravated assault when a firearm is discharged and a three-level increase when a firearm is brandished. The difference between these offense-level increases was used to increase Defendant's offense level to 34.
The court accepted the recommendation and noted it in the judgment of sentence at page 10. On March 30, 1999, Defendant was sentenced to 120 months on count I, 212 months on count II, and sixty months on count IV, to run concurrently.
Defendant was also sentenced to sixty months on count III, to run consecutively to the term on count II, as required by statute. Defendant's total sentence was 272 months.
Defendant took a direct appeal, raising various issues, including whether we should have made an upward departure. On October 7, 1999, the Third Circuit affirmed the conviction and sentence in an unpublished disposition, United States v. Johnson, No. 99-3267 (3d Cir. Oct. 7, 1999), noting ...