United States of America v. Shawn Demar Johnson

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1553
___________________________
United States of America
lllllllllllllllllllll Appellee
v.
Shawn Demar Johnson
lllllllllllllllllllll Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa
____________
Submitted: September 18, 2012
Filed: October 30, 2012
[Published]
____________
Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Shawn Johnson appeals from the district court's denial of his motion for a1
sentence reduction under 18 U.S.C. § 3582(c)(2). We affirm.
The Honorable Robert W. Pratt, United States District Judge for the Southern1
District of Iowa.

-- 1 of 2 --

After Mr. Johnson pleaded guilty to possessing cocaine base (crack) with the
intent to distribute it, see 21 U.S.C. § 841(a)(1), the district court sentenced him to
30 months' imprisonment in accordance with a plea agreement that Mr. Johnson had
entered into under Fed. R. Crim. P. 11(c)(1)(C). Mr. Johnson later moved for a
sentence reduction based on retroactive amendments to the Sentencing Guidelines.
See U.S.S.G., app. C, amend. 750. To be eligible for a reduction, Mr. Johnson had
to have been sentenced "based on a sentencing range that has subsequently been
lowered by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). He maintains that
his sentence was "based on a sentencing range" because his plea agreement states that
his 30-month sentence "adequately takes into account all of the factors to be
considered under the advisory sentencing guidelines that apply to this offense."
We agree with the district court that this language does not make Mr. Johnson
eligible for a reduction. According to Justice Sotomayor's concurring opinion in
Freeman v. United States, 131 S. Ct. 2685 (2011), the principles of which supply the
rule of decision in this case, see Marks v. United States, 430 U.S. 188, 193 (1977),
a sentence under Rule 11(c)(1)(C) is "based on" the Guidelines if the plea agreement
"expressly uses a Guidelines sentencing range applicable to the charged offense to
establish the term of imprisonment," Freeman, 131 S. Ct. at 2695 (Sotomayor, J.,
concurring). But here, though the Guidelines were adverted to generally, there is no
express connection between them and Mr. Johnson's sentence: there was no
intimation that the agreed-upon " 'sentence [was] determined pursuant to the
Sentencing Guidelines.' " Cf. id. at 2699 (quoting the plea agreement in Freeman).
The agreement does not "make clear that the basis for the specified term is a
Guidelines sentencing range applicable to the offense to which [Mr. Johnson] pleaded
guilty," since a Guidelines "sentencing range is [not] evident from the agreement
itself." Id. at 2697. We thus cannot say that the Guidelines "range serves as the basis
or foundation for the term of imprisonment." Id. at 2695.
Affirmed.
______________________________
-2-

-- 2 of 2 --