United States of America v. Kelvin Renard Johnson, a.k.a. Boo

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KELVIN RENARD JOHNSON, a.k.a.
Boo,
Defendant - Appellant.
No. 11-30371
D.C. No. 2:01-cr-00132-FVS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, District Judge, Presiding
Submitted September 10, 2012**
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Kelvin Renard Johnson appeals pro se from the district court’s order
denying his motion to modify his term of imprisonment under 18 U.S.C.
§ 3582(c)(2). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
SEP 21 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-30371 2
Johnson contends that he was eligible for a sentence reduction based on the
retroactive amendments to the Sentencing Guidelines that reduced the base offense
levels in U.S.S.G. § 2D1.1 applicable to crack cocaine offenses. The district court
lacked jurisdiction to modify Johnson’s sentence because the sentence, pursuant to
the terms of the plea agreement, was based on the career offender provision,
U.S.S.G. § 4B1.1, not section 2D1.1. See 18 U.S.C. § 3582(c)(2); United States v.
Wesson, 583 F.3d 728, 731 (9th Cir. 2009).
Johnson nonetheless argues that his decision to enter into the plea agreement
was influenced by the sentencing framework that was later changed by the crack
cocaine amendments. Even assuming the truth of this contention, section 3582(c)
does not afford a basis for relief. See Wesson, 583 F.3d at 732 (“The only question
that matters in determining the applicability of [the crack cocaine amendments] is
whether [the] sentence is ‘based on’ § 2D1.1.”).
AFFIRMED.

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