USA v. JOHNSON

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
)
v. 	) 	2:22-cr-00038-JAW-1
)
TOMAS JOHNSON 	)
)
ORDER ON MOTION TO REDUCE SENTENCE
The court dismisses without prejudice a defendant’s motions to reduce his
sentence pursuant to amendments 814 and 821 of the United States Sentencing
Guidelines because he failed to exhaust his administrative remedies as to his
amendment 814 claim and because amendment 821 does not have the effect of
lowering his applicable guidelines range.
I. 	BACKGROUND
On October 28, 2021, the Government filed a criminal complaint against
Tomas Johnson, alleging that on or about October 20, 2021, Mr. Johnson, “knowing
he had previously been convicted of . . . crimes punishable by a term of imprisonment
exceeding one year, . . .. knowingly possessed in and affecting commerce a firearm,”
in violation of 18 U.S.C. §§ 922(g)(1). Crim. Compl. at 1 (ECF No. 3). On March 23,
2022, a federal grand jury indicted Mr. Johnson on a total of five criminal counts: (1)
“Felon in Possession of a Firearm,” on or about October 20, 2021, in violation of 18
U.S.C. § 922(g)(1); (2) “Theft from a Federally Licensed Firearms Dealer,” on or about
October 24, 2021, in violation of 18 U.S.C. § 922(u); (3) “Possession of a Stolen
Firearm,” on or about October 28, 2021, in violation of 18 U.S.C. § 922(j); (4)
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“Possession with Intent to Distribute Cocaine Base,” on or about October 28, 2021, in
violation of 21 U.S.C. §§ 841(a)(1); and (5) “Possession of a Firearm in Furtherance of
Drug 	Trafficking,” on 	or about 	October 28, 2021, in violation 	of 18 U.S.C. 	§
924(c)(1)(A). Indictment at 1-3 (ECF No. 24).
On April 27, 2023, Mr. Johnson appeared before the Court and pleaded guilty
to Counts 1-4 of the Indictment. Min. Entry (ECF No. 68); see also Agreement to Plead
Guilty (ECF No. 65). 	At the sentencing hearing on December 18, 2023, the
Government made an oral motion to dismiss Count 5 against Mr. Johnson, Oral Mot.
(ECF No. 98), which the Court granted, Oral Order (ECF No. 99). The Court imposed
a sentence of 120 months on Counts 1-3 and 144 months on Count 4, to be served
concurrently; 	three 	years 	of 	supervised 	release 	on 	all 	counts 	to 	be 	served
concurrently; no fine; restitution in the amount of $16,580.83 on Count 2; and a $400
special assessment. Min. Entry (ECF No. 97); J. (ECF No. 101); Statement of Reasons
(ECF No. 102).
On July 9, 2024, Mr. Johnson, appearing pro se, filed a motion for sentence
reduction and a supporting brief, which argue for reductions in his sentence of
incarceration pursuant to Amendments 814 and 821, respectively, to the United
States Sentencing Guidelines (U.S.S.G.). Mot. for Reduction in Sentence Pursuant to
Section § 3582(c)(1)(A), under Retroactive Amend. 814, which Revises the “Other
Reasons” Category (ECF No. 111) (Def.’s 814 Mot.); id., Attach. 1, Supp. Brief in
Support of Retroactive Amend. 821 (Def.’s 821 Brief.). 	In his motion for a reduced
sentence 	pursuant 	to 	Amendment 	814, 	Mr. 	Johnson 	asserts 	the 	amendment
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retroactively expanded the list of “extraordinary and compelling” reasons listed under
U.S.S.G. § 1B1.13 to include “Medical Circumstances,” and “Other Reasons,” arguing
that the “Other Reasons” category is satisfied by the illegality of his conviction
pursuant to 18 U.S.C. § 922(g)(1). 814 Mot. at 2-3. Addressing the “Other Reasons”
category, he argues “there can be nothing more compelling and extraordinary than
an American citizen under an illegal conviction making him procedurally innocent.”
Id. at 3 (citing Schlup v. Delo, 513 U.S. 298 (1995)).
Mr. Johnson cites New York State Rifle & Pistol Association, Inc. v. Bruen, 597
U.S. 1 (2022), to argue “that defendants convicted of offenses involving the illegal
possession of a firearm may be able to attack their convictions,” and additionally
directs the Court to United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), in which
the Fifth Circuit found a state law prohibiting the “possession of firearms by someone
subject to a domestic violence restraining order [as] an outlier that the founders
would never have accepted, and therefore, unconstitutional.” Id. at 3-4 (citing Bruen,
597 U.S. 1; Rahimi, 61 F.4th 443). 	Mr. Johnson also collects further post-Bruen
federal caselaw in support of his contention that criminalizing possession of firearms
by a felon violates the historical tradition of firearm regulation and the Second
Amendment of the federal Constitution. Id. at 4-7.
Separately, in a supplemental brief, Mr. Johnson maintains he is also entitled
to a sentence reduction pursuant to 18 U.S.C. 3582(c)(2), claiming that under
Amendment 821 to the Sentencing Guidelines he would not receive any criminal
history points and that his criminal history category would be lower under the revised
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U.S.S.G. § 1B1.10. Def.’s 821 Brief at 1. Thus, he argues, his Guidelines sentencing
range would have been lower and an ex post reduction is justified. Id. at 4.
On July 22, 2024, the United States Probation Office (PO) filed an 821
reduction report. 	Rep. Pursuant to Amend. 821 to the U.S. Sent’g Guidelines for
Ineligible Def. (ECF No. 112) (PO Ineligible Rep.) (emphasis in original). In its report,
the PO noted the Defendant had 20 criminal history points prior to the two status
points being applied pursuant to § 4A1.1(d) in the 2021 Sentencing Guidelines. 	PO
Ineligible Rep. at 2-3. 	Thus, the PO concluded Mr. Johnson was not entitled to a
sentence reduction under Amendment 821 because this amendment did not affect his
Criminal History Category VI or his Guidelines range. 	Id. at 3. 	The Government
responded to Mr. Johnson’s motion on November 25, 2024, opposing his sentence
reduction as ineligible under Amendment 814 and not meeting the criteria of
Amendment 821. Gov’t’s Resp. in Opp’n to Def.’s Mot. to Reduce Sentence at 1 (ECF
No. 115) (Gov’t’s Opp’n).
Beginning 	with 	Mr. 	Johnson’s 	Amendment 	814 	claim, 	the 	Government
submits that the Court should dismiss his request for three reasons: “(1) failure to
exhaust 	administrative 	remedies, 	(2) 	failure 	to 	establish 	extraordinary 	and
compelling reasons warranting a sentence reduction, and (3) failure to establish that
review of the 18 U.S.C. § 3553(a) sentencing factors weigh in favor of a reduced
sentence.” Id. at 5. The Government avers that an incarcerated individual may bring
a compassionate release motion in court “only after the prisoner has exhausted all
administrative rights to appeal a failure of the Bureau of Prisons to bring a motion
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on his behalf or after thirty days have elapsed from the relevant facility’s receipt of
such request.” Id. (quoting United States v. Quirós-Morales, 83 F.4th 79, 84 (1st Cir.
2023) (in turn citing 18 U.S.C. § 3582(c)(1)(A)). 	The Government contends that the
administrative exhaustion requirement is issue-specific as well as “motion-specific”
and argues that the record contains no evidence that Mr. Johnson presented prison
officials with a request for release based on his Second Amendment challenge prior
to filing the instant motion with the Court. Id. at 6.
The Government further asserts that Mr. Johnson’s Second Amendment
challenge is properly brought as an application for a writ of habeas corpus, which
“deals with the legality and validity of a conviction and provides a method for
automatic vacatur of sentences (when warranted under the statute),” rather than a
motion to reduce sentence. 	Id. at 7 (quoting United States v. Trenkler, 47 F.4th 42,
48 (1st Cir. 2022)). 	Next, the Government argues that Mr. Johnson’s Second
Amendment challenge also fails as a motion for compassionate release because it does
not provide an “extraordinary and compelling” basis for the Defendant’s release
within the definition of 18 U.S.C. § 3582 and associated policy statements. Id. at 8-
9. Finally, the Government insists “the 18 U.S.C. § 3553(a) sentencing factors weigh[]
against 	reducing 	Johnson’s 	sentence” 	and 	the 	Court 	should 	thus 	reject 	the
Defendant’s request for his early release. Id. at 9.
Turning to Mr. Johnson’s Amendment 821 claim, the Government maintains
the retroactive amendment does not have the effect of lowering his applicable
Guidelines range because the Court had properly applied the terms of the revised
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U.S.S.G. § 4A1.1 at the time of sentencing. 	Id. at 10. 	The Government points out
that Mr. Johnson’s criminal history points far exceeded the 13-point threshold to
trigger a Criminal History Category VI, and thus agrees with the PO that Mr.
Johnson is ineligible for further relief under Amendment 821. Id. at 10-11.
II. 	DISCUSSION
After reviewing Mr. Johnson’s submissions and the Government’s response,
the Court concludes that Mr. Johnson is not entitled to sentence reduction pursuant
to either U.S.S.G. Amendment 814 or 821 because he has failed to exhaust his
administrative remedies with regard to his Amendment 814 claim and because
Amendment 821 does not lower his Guidelines range.
A. 	Sentence Reduction Pursuant to Amendment 814
1. 	Background of Amendment 814
On 	April 	5, 	2023, 	the 	United States 	Sentencing 	Commission 	submitted
Amendment 814 to Congress as a revision to the First Step Act of 2018, a statute
which permits criminal defendants to move a federal court to reduce a sentence of
incarceration “after 	the defendant has fully exhausted all administrative rights to
appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf
or the lapse of 30 days from the receipt of such a request by the warden of the
defendant’s facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A).
Amendment 814, which became effective on November 1, 2023, revised the list
of “extraordinary and compelling reasons” that may warrant a sentence reduction
pursuant to 18 U.S.C. § 3582(c)(1)(A). See U.S.S.G. § 1B1.13(b) (Nov. 1, 2023) (listing
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extraordinary and compelling reasons); see also U.S. Sent’g Comm’n, Guidelines
Manual, App. C Supp., Amend. 814, Reason for Amend. at 206 (“The amendment
expands the list of specified extraordinary and compelling reasons and retains the
‘other reasons’ basis”).
Relevant here, Amendment 814 retained and clarified the catchall provision,
allowing courts to grant a sentence reduction based on “other reasons.” 	U.S.S.G. §
1B1.13(b)(5). Specifically, the Sentencing Commission explained:
the amendment retains the “Other Reasons” catchall ground currently
found in Application Note 1(D). It also makes clear that extraordinary
and compelling reasons exist if the defendant presents any other
circumstance 	or 	combination 	of 	circumstances 	that, 	considered 	by
themselves or together with any of the reasons specified in paragraphs
(1) through (4), are similar in gravity to those described in paragraphs
(1) through (4). The Commission considered but specifically rejected a
requirement that “other reasons” be similar in nature and consequence
to the specified reasons. Rather, they need be similar only in gravity, a
requirement that inheres in the statutory requirement that they present
extraordinary and compelling reasons for a sentence reduction. See 18
U.S.C. § 3582(c)(1)(A).
See U.S. Sent’g Comm’n, Guidelines Manual, App. C Supp., Amend. 814, Reason for
Amend. at 207.
2. 	Amendment 814 and Tomas Johnson
Mr. Johnson cites the Supreme Court’s Bruen decision and its progeny to
support his fundamental contention that his conviction for illegal possession of a
firearm violates the federal Constitution. 	Def.’s 814 Mot. at 3-9. 	He insists “there
can be nothing more compelling and extraordinary than an American citizen under
an illegal conviction making him procedurally innocent.” 	Id. at 3 (citing Schlup v.
Delo, 513 U.S. 298 (1995)). 	The Government responds by arguing, among other
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reasons, that Mr. Johnson failed to exhaust his administrative remedies prior to filing
the motion in this Court.1 Gov’t’s Opp’n at 5-6.
Based on the Court’s review of the record, the Government correctly alleges
the lack of evidence that Mr. Johnson exhausted his administrative remedies prior to
filing his motion in this Court. 	Thus, Mr. Johnson’s motion “fails at the first step:
exhaustion.” United States v. Talmer, No. 2:20-cr-00084-GZS, 2022 U.S. Dist. LEXIS
155673, at *2 (D. Me. Aug. 30, 2022). The First Circuit has recognized this mandatory
requirement. 	Quirós-Morales, 83 F.4th at 84 (“a prisoner-initiated motion for
compassionate release may be made only after the prisoner has exhausted all
administrative rights to appeal a failure of the Bureau of Prisons to bring a motion
on his behalf or after thirty days have elapsed from the relevant facility's receipt of
such request”). 	In keeping with First Circuit precedent, the caselaw of this District
reflects the consensus that “exhaustion is mandatory unless waived or conceded by
the Government.” 	Id. at 3 (citing United States v. Brown, No. 2:13-cr-00071-DBH,
2021 U.S. Dist. LEXIS 208380, at *1 (D. Me. Oct. 28, 2021); United States v. Hassan,
No. 2:16-cr-00084-JDL, 2020 U.S. Dist. LEXIS 195468, at *3 (D. Me. Oct. 21, 2020)).
1 	The Government also submits that Mr. Johnson’s Amendment 814 claim is properly
characterized as an application for a writ of habeas corpus because it “deals with the legality and
validity of a conviction and provides a method for automatic vacatur of sentences (when warranted
under the statute).” Id. at 7 (quoting Trenkler, 47 F.4th at 48). While the Government does not raise
it specifically, the Court notes a jurisdictional aspect of this argument; under Supreme Court
precedent, “the traditional rule has always been that the Great Writ is ‘issuable only in the district of
confinement.’” Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004) (quoting Carbo v. United States, 364 U.S.
611, 617 (1961)). Based on Mr. Johnson’s filings, he is incarcerated at U.S.P. Hazelton in Bruceton
Mills, West Virginia, not within the District of Maine. 	See Def.’s 814 Mot. at 8. 	As the Court is
dismissing this claim on procedural grounds for Mr. Johnson’s failure to exhaust his administrative
remedies, it is not reaching this issue. However, if Mr. Johnson chooses to file the same claim after
exhausting his administrative remedies, he should be prepared to discuss why this Court has
jurisdiction of what may well be a habeas corpus petition.
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In the absence of evidence demonstrating Mr. Johnson properly exhausted
administrative remedies, the Court is obligated to dismiss his motion regardless of
the substantive merits. See Ross v. Blake, 578 U.S. 632, 632-33 (2016) (stating that
“mandatory exhaustion statutes . . . foreclose[e] judicial discretion”). Thus, the Court
concludes that the pending request for compassionate release is subject to dismissal
without prejudice based on the Defendant’s failure to administratively exhaust his
remedies.
B. 	Sentence Reduction Pursuant to Amendment 821
1. 	Background of Amendment 821
Effective 	November 	1, 	2023, 	the 	United 	States 	Sentencing 	Commission
adopted Amendment 821, which contained two changes: first, it eliminated U.S.S.G.
§ 4A1.1(d), which had increased a defendant’s criminal history score by two points if
the defendant committed the instant offense while under any criminal justice
sentence, 	including 	probation, 	parole, 	supervised 	release, 	imprisonment, 	work
release, or escape status; and second, it inserted a new section, § 4A1.1(e), which
served to increase the criminal history score by one point if the defendant received
seven or more criminal history points and committed the offense while under a
criminal justice sentence. See U.S. Sent’g Comm’n, Guidelines Manual App. C Supp.,
Amend. 821, Reason for Amend. at 240-41; see also United States v. Burgos-Balbuena,
No. 22-1660, 2024 U.S. App. LEXIS 21382, at *16 n.8 (1st Cir. Aug. 23, 2024) (“[t]he
Guidelines now call for only one point in [cases where the defendant committed the
instant offense while under supervised release], and only if the defendant’s criminal
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history points otherwise add up to seven or more”). 	These enhancements, under
either the old or new version of § 4A1.1, are known as “status points.” See U.S. Sent’g
Comm’n, Guidelines Manual, App. C Supp., Amend. 821, Reason for Amend. at 241.
The Sentencing Commission also clarified that the changes to the Sentencing
Guidelines made through Amendment 821 should be applied retroactively. U.S.S.G.
§ 1B1.10, comment. n.7. 	As such, defendants who received a two-level status point
increase in their original calculation may be eligible for a reduction in criminal
history 	calculation 	if 	“the 	guideline 	range 	applicable 	to 	that 	defendant 	has
subsequently been lowered as a result of an amendment to the Guidelines.” U.S.S.G.
§ 1B1.10(a)(1). 	However, the Commission made clear that no sentence reduction is
authorized pursuant to 18 U.S.C. § 3582(c)(2) if “[a]n amendment . . . does not have
the effect of lowering the defendant’s applicable guideline range.” 	U.S.S.G. §
1B1.10(a)(2)(B).
2. 	Amendment 821 and Tomas Johnson
Mr. Johnson moves for a sentence reduction under 18 U.S.C. § 3582(c)(2) and
Amendment 821, claiming that “[b]ased on the new, retroactive guidelines [he] would
not receive any criminal history points and his criminal history category would be
lower.” Def.’s 821 Brief at 1. 18 U.S.C. § 3582(c)(2) permits courts to reduce the term
of imprisonment “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by
the Sentencing Commission” should it determine “after considering the factors set
forth in section 3553(a) [18 USCS § 3553(a)] to the extent that they are applicable, []
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such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In light of its conclusion with regard
to Mr. Johnson’s Amendment 814 claim, the Court highlights that 18 U.S.C. §
3582(c)(2) does not contain a similar administrative exhaustion requirement to §
3582(c)(1)(A), but rather permits a defendant to bring a motion directly in court. Id.
Unfortunately for Mr. Johnson, Amendment 821 does not justify a sentence
reduction in his case because the revised Guidelines were, in fact, applied by the
Court at the time of his sentencing and do not lower his Guidelines sentencing range.
At sentencing, the Court explained “the new provision, which does apply retroactively
to the defendant, reduces the two levels to a one-level increase” and corrected the
PO’s proposed Guidelines calculations by reducing the criminal history point level
from 22 to 21. 	Tr. of Proceedings, 10:15-19. 	However, “as the tipping point for
Criminal History Category VI is 13 [criminal history points],” the Court determined
that the reduction from 22 to 21 criminal history points had no effect on his Category
VI determination, “even after Section 4A1.1(e) is applied.” Id. at 10:19-21. As such,
the Court concluded that Amendment 821’s changes to the Guidelines “ha[ve] no
impact on the guideline sentence range.” Id. at 10:24-25.
The Court’s application of Amendment 821 at Mr. Johnson’s sentencing
hearing is also reflected in its Statement of Reasons. Statement of Reasons at 1 (ECF
No. 102) (“The court adopts the presentence investigation report with the
following changes: . . . . 3. ☒ Chapter Four of the United States Sentencing
Commission Guidelines Manual determinations by court: (briefly summarize the
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changes, including changes to criminal history category or scores, career offender
status, or criminal livelihood determinations) The Court imposed a one-point status
point, as opposed to two, under Amendment 821. His criminal history score goes from
22 to 21, however his CHC remains VI”) (emphasis in original).
In sum, the Court stands by its Guidelines calculations at the sentencing
hearing. 	Under U.S.S.G. § 4A1.1, as revised by Amendment 821, Mr. Johnson’s
criminal history score of 21 exceeds the threshold number of 13 and thus warrants
the designation of Criminal History Category VI. 	This criminal history category,
combined with his total offense level of 27, determines a guideline sentence range of
130 to 162 months, as was properly calculated at the sentencing hearing. 	Under
U.S.S.G. § 1B1.10, a court is not authorized to reduce a defendant’s term of
incarceration if the amendment “does not have the effect of lowering the defendant’s
applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
As Amendment 821 does not reduce Mr. Johnson’s sentencing guideline range,
the Court cannot reduce his sentence pursuant to Amendment 821. 	See, accord,
United States v. McCray, No. 1:12-cr-00055-JAW, 2023 U.S. Dist. LEXIS 213730, at
*4 (D. Me. Dec. 1, 2023) (dismissing a defendant’s motion for reduction of sentence
because “as [the defendant] had a criminal history score of 27, even if the new
amendment applied to him and resulted in a reduced total criminal history score of
26, a score of 26 would still be far above the triggering point of 13 for a Criminal
History Category VI. As a result, his guideline sentence range would be the same”);
see also United States v. Parker, No. 24-1342, 2024 U.S. App. LEXIS 19927, at *4-5
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(6th Cir. Aug. 7, 2024) (affirming the district court’s dismissal of a motion for sentence
reduction 	and 	explaining 	“[the 	defendant] 	does 	reiterate 	his 	argument 	that
Amendment 821 reduces his criminal-history points, but as the district court pointed
out, [the defendant] would receive only one fewer point. Seventeen (rather than 18)
criminal-history points still place [the defendant] in criminal-history category VI,
which, [the defendant] concedes, leaves his guidelines range unchanged”) (internal
citations omitted).
III. 	CONCLUSION
The Court DISMISSES without prejudice Defendant’s Motion for Reduction in
Sentence Pursuant to 18 U.S.C. § 3582(c)(2) Under Retroactive Amendment 814,
which Revises the “Other Reasons” Category (ECF No. 111).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 26th day of December, 2024
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