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United States v. Johnson

July 27, 2009


The opinion of the court was delivered by: Eduardo C. Robreno, J.


Petitioner Jeffrey Johnson ("Petitioner") is serving a 360-month term of imprisonment for conspiracy to distribute more than 50 grams of crack. Based upon Amendment 706 to the United States Sentencing Commission Guidelines (the "Guidelines"), which altered § 2D1.1 of the Guidelines, Petitioner requests a reduction of his sentence. For the reasons that follow, the petition for reduction of sentence will be denied.


A. Petitioner's Sentence

On July 18, 2000, Petitioner, along with several other defendants, was charged with conspiracy to distribute over 50 grams of crack cocaine, the distribution of crack cocaine, and the distribution of crack cocaine within 1,000 feet of a public housing facility, in violation of 21 U.S.C. § 846, 841, and 860, respectively.

On December 20, 2000, Petitioner was convicted of conspiracy to distribute more than 50 grams of crack, in violation of 21 U.S.C. § 846. The Pre-sentence Investigation Report calculated the offense level under U.S.S.G. § 2D1.1 to be 32, based upon a weight between 50-150 grams of crack cocaine. Enhancements proposed by the probation department due to career offender guidelines brought the criminal history level to VI along with an increase in offense level from 32 to 37. The offender guidelines for this range were and still are 360 months to life. On February 13, 2002, Petitioner was sentenced to 360 months imprisonment.

B. Changes to the Sentencing Guidelines On November 1, 2007, the United States Sentencing

Commission (the "Commission") adopted Amendment 706 to the Guidelines to address what the Commission had come to view as unwarranted disparities in the sentences of defendants who possess or distribute various forms of cocaine. Prior to November 1, 2007, the Guidelines provided for a 100-to-1 ratio in sentences for crimes involving cocaine powder compared to those involving crack.*fn1 For example, § 2D1.1 of the Guidelines provided the same base offense level for a crime involving 150 kilograms or more of cocaine powder and for one involving 1.5 or more kilograms of crack. U.S.S.G. § 2D1.1(c)(1) (2006).

Under the November 1, 2007 amendment, the ratio between powder and crack sentences has been decreased. For example, 150 kilograms of cocaine powder is now treated as the equivalent of 4.5 kilograms of crack. U.S.S.G. § 2D1.1(c)(1) (2007). The bottom line for individual defendants is that a defendant sentenced under § 2D1.1 for a crack offense after November 1, 2007 receives a base offense level that is two levels lower than what he would have received for the identical offense if he had been sentenced before the November 1, 2007 amendment. 2 Federal Sentencing Guidelines Manual App. C 1160 ("Appendix C").

The Commission also altered the calculation of base offense levels for offenses involving crack and other controlled substances to reduce the impact of a crack conviction. Id. at 1158-59. The base offense level for these offenses is determined by converting the amount of each substance into a comparable amount of marijuana and then determining the base offense level for that amount of marijuana. U.S.S.G. § 2D1.1, comment 10(A)-(E). Amendment 706 provides that a given amount of crack translates into a lesser quantity of marijuana than it did under the old Guidelines. Appendix C at 1158; compare U.S.S.G. § 2D1.1 (2007), with U.S.S.G. § 2D1.1 (2006). Thus, post-amendment Guidelines ranges for crimes involving cocaine base and other controlled substances are also lower than ranges for the same crimes pre-amendment.

The Commission based Amendment 706 on "its analysis of key sentencing data about cocaine offenses and offenders; [a] review[] [of] recent scientific literature regarding cocaine use, effects, dependency, prenatal effects, and prevalence; research[] [on] trends in cocaine trafficking patterns, price, and use; [a] survey[] [of] the state laws regarding cocaine penalties; and [the Commission's] monitor[ing] [of] case law developments." Appendix C at 1159-60. This information led to the conclusion that "the 100-to-1 drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere." Id. at 1160. The Commission "predicts that, assuming no change in the existing statutory mandatory minimum penalties, this modification to the Drug Quantity Table will affect 69.7 percent of crack offenses sentenced under § 2D1.1 and will result in a reduction in the estimated average sentence of all crack offenses from 121 months to 106 months...." Id. at 1160-61.


Petitioner moves for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) because of recent changes to the Guidelines in the treatment of offenses involving crack.

Section 3582(c)(2) provides the authority to reduce a sentence only if "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). The applicable policy statement, § 1B1.10(a), provides that if "the guideline range applicable to th[e] defendant has... been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below," a reduction in ...

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