USA v. Benjamin Johnson

Filing 2

Opinion

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604
Submitted December 1, 2008 Decided December 9, 2008

Before
FRANK H. EASTERBROOK , Chief Judge WILLIAM J. BAUER, Circuit Judge MICHAEL S. KANNE , Circuit Judge

No. 08-2457
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BENJAMIN JOHNSON, Defendant-Appellant. Order

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:01-CR-98 James T. Moody, Judge.

As part of a plea agreement, Benjamin Johnson promised not to contest or appeal from his conviction or sentence. That waiver includes a promise "not to contest my sentence ... in any post-conviction proceeding, including, but not limited to, a proceeding under [28 U.S.C. §] 2255."

This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).

No. 08-2457

Page 2

After being sentenced, Johnson violated this promise by appealing. We held the plea and waiver valid and dismissed his appeal. United States v. Suggs, 374 F.3d 508, 51920 (7th Cir. 2004). Ignoring our decision that the waiver is valid, Johnson then filed a post-conviction proceeding under §2255. The district court enforced the waiver by dismissing it, and we dismissed Johnson's appeal. After the Sentencing Commission reduced the ranges for crack cocaine offenses, and made those changes retroactive, Johnson asked the district court to reduce his sentence. The judge declined, observing that only persons who distributed less than 4.5 kilograms of cocaine can benefit from the reduction, while Johnson was responsible for at least 17 kilograms. He has appealed a third time, to argue that he was not responsible for more than 2.5 grams of cocaine and that the district judge should have reduced his sentence even if the retroactive amendments did not authorize that step. For a third time, we dismiss the appeal as barred by the waiver. Johnson contends that the retroactive amendments were not anticipated when he negotiated the waiver and thus are outside its scope, but the waiver is comprehensive. We have previously rejected analogous arguments that legal developments post-dating waivers relieve defendants of the promise not to appeal. E.g., United States v. Bownes, 405 F.3d 634 (7th Cir. 2005). Johnson's contention that the prosecutor forfeited the benefit of his waiver by not reminding the district judge of it is unavailing; appellate waivers do not affect proceedings in district courts. Perhaps the United States forfeited any objection to the motion in the district court to reduce sentence; it did not forfeit a right to insist that the district judge's decision be the final one. The appeal is dismissed.