Johnson v. USA

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that David Johnson's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED. An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 12/3/2014. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DAVID JOHNSON,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent,

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No. 1:14CV157 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion of David Johnson to amend his
sentence pursuant to 28 U.S.C. § 2255. Johnson argues that his counsel was ineffective
during the sentencing hearing for failing to request a downward variance because of his
chronic illnesses. The motion is without merit and is denied.
Johnson pled guilty to conspiracy to distribute methamphetamine in violation of
21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. United States v. Johnson, 1:13CR46 AGF
(E.D. Mo.). Johnson’s plea agreement stated, “defendant fully understands that the crime
to which a guilty plea is being entered requires a mandatory minimum term of
imprisonment of at least ten (10) years.” Id. In his sentencing memorandum, Johnson
noted that his health condition might otherwise warrant a downward variance but that the
statutory minimum was ten years. Id. On October 22, 2013, the Court sentenced
Johnson to the mandatory minimum sentence of ten years’ imprisonment.
Johnson was given the minimum sentence allowed by law. His counsel could not
have been ineffective for failing to move for a lower sentence, because any such request

would have been meritless. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984)
(to prevail on a claim of ineffective assistance of counsel, a defendant must show that
counsel’s performance was both deficient and prejudicial); United States v. Hufft, 11
Fed. App’x 639, 640 (8th Cir. 2001) (recognizing that a district court “lacks authority to
depart below the statutory minimum based on a defendant’s physical condition”) (citing
United States v. Rabins, 63 F.3d 721, 727 & n.10 (8th Cir. 1995)). As a result, Johnson is
not entitled to relief under 28 U.S.C. § 2255.
Finally, Johnson has failed to make a substantial showing of the denial of a
constitutional right, which requires a demonstration “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right.”
Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir. 2002) (quotation omitted). Thus, the Court
will not issue a Certificate of Appealability. 28 U.S.C. ' 2253(c).
Accordingly,
IT IS HEREBY ORDERED that David Johnson’s Motion to Vacate, Set Aside,
or Correct Sentence under 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 3rd day of December, 2014.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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