USA v. Stephanie Johnson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11670
Non-Argument Calendar
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D.C. Docket No. 1:07-cr-20009-JEM-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEPHANIE JOHNSON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 5, 2012)
Before HULL, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
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Stephanie Johnson appeals her sentence of 120 months of imprisonment,
which was imposed after the district court reduced for the second time Johnson’s
original sentence of 168 months of imprisonment. 18 U.S.C. § 3582(c)(2). On
Johnson’s motion, the district court sentenced her to the statutory minimum
sentence in effect when she was first sentenced, but Johnson requested a greater
reduction based on the lower minimum sentence under the Fair Sentencing Act of
2010. We affirm.
Johnson’s argument for a further reduction of her sentence is foreclosed by
our recent decision in United States v. Berry, No. 12–11150 (11th Cir. Nov. 14,
2012), that a defendant sentenced before the effective date of the Act is ineligible
to have her sentence reduced. We held that the Act “is not a guidelines
amendment by the Sentencing Commission, but rather a statutory change by
Congress, and . . . does not serve as a basis for a . . . sentence reduction” under
section 3582(c)(2). Id., slip op. at 4. Even if the Act could serve as a basis to
reduce a sentence, we held in Berry that the lower mandatory minimum sentences
did not apply retroactively to offenders sentenced before the effective date of the
Act. Id. at 4–5. As explained by the Supreme Court in Dorsey v. United States,
567 U.S. ____, 132 S. Ct. 2321 (2012), “application of the new minimums to pre-
Act offenders sentenced after August 3 create[d] a new set of disparities,” that was
an inevitable consequence of any “new law changing sentences” and was
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consistent with “the ordinary practice . . . to apply new penalties to defendants not
yet sentenced, while withholding that change from defendants already sentenced.”
Id. at 2335. The district court did not err in denying Johnson’s motion to reduce
her sentence below the statutory minimum in effect at her original sentencing.
We AFFIRM the denial of Johnson’s motion to reduce her sentence below
the statutory minimum in effect at her original sentencing.
AFFIRMED.
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