USA v. Terry Johnson


Opinion issued by court as to Appellant Terry Johnson. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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Case: 12-11048 Date Filed: 08/08/2012 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-11048 Non-Argument Calendar ________________________ D.C. Docket No. 9:08-cr-80103-DTKH-1 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee, versus TERRY JOHNSON, lllllllllllllllllllllllllllllllllllllll lDefendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (August 8, 2012) Before TJOFLAT, MARTIN and KRAVITCH, Circuit Judges. PER CURIAM: Case: 12-11048 Date Filed: 08/08/2012 Page: 2 of 3 Terry Johnson appeals the district court’s denial of his pro se motion to reduce his total sentence, pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750 to the Sentencing Guidelines. Sentenced as a career offender, Johnson does not dispute that, under United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), he would be ineligible for § 3582 relief, see id. at 1327–28. Nonetheless, he insists that he is entitled to a sentence reduction under § 3582 because the Supreme Court’s intervening decision in Freeman v. United States, __ U.S. __, 131 S. Ct. 2685 (2011), effectively “undermined” Moore. However, in United States v. Lawson, No. 11-15912, slip. op. 1 (11th Cir. July 13, 2012), we rejected precisely the argument that Johnson advances here. In that case, we concluded that Freeman did not address defendants like Johnson, “who were assigned a base offense level under one guideline section, but who were ultimately assigned a total offense level and guideline range under § 4B1.1 [the career-offender enhancement].” Id. at 6. Consequently, “Freeman is not ‘clearly on point’ to the issue that arose in Moore,” id. at 7, thereby leaving Moore undisturbed as “binding precedent,” id. at 6. Lawson thus forecloses Johnson’s argument. And since the rule set forth in Moore still applies, we conclude that Amendment 750—which altered only Johnson’s base offense level—does not affect the sentence that Johnson received 2 Case: 12-11048 Date Filed: 08/08/2012 Page: 3 of 3 pursuant to the career-offender guidelines. See id. at 3–7. The district court’s denial of Johnson’s motion for a reduction in his total sentence is therefore AFFIRMED. 3

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