USA v. Terry Johnson

Filing

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

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[DO NOT PUBLISH]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
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D.C. Docket No. 9:08-cr-80103-DTKH-1

UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll

Plaintiff-Appellee,
versus

TERRY JOHNSON,
lllllllllllllllllllllllllllllllllllllll

lDefendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(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
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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.

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