United States of America v. Kenneth Johnson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 15, 2010
Decided August 3, 2010
Before
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09‐2323
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
KENNETH JOHNSON,
Defendant Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, Hammond Division.
No. 2:01‐cr‐98
James T. Moody,
Judge.
O R D E R
Kenneth Johnson pleaded guilty to distributing crack cocaine in violation of
21 U.S.C. § 841(a)(1) and was sentenced at the bottom of the advisory sentencing guidelines
range to 293 months’ imprisonment. Johnson moved to reduce his sentence pursuant to
18 U.S.C. § 3582(c)(2) based on an amended sentencing guideline that retroactively reduced
the base offense level for crack‐cocaine offenses by two levels. U.S.S.G. § 1B1.10(b)(2)(A).
The district court entered an order reducing Johnson’s sentence by two levels but concluded
that it lacked authority to reduce the sentence further. This decision was correct. In United
States v. Cunningham, 554 F.3d 703, 708 (7th Cir. 2009), we held that district courts did not
have authority to reduce sentences below the minimum amended guidelines range.
Johnson nevertheless appealed, arguing that under United States v. Booker, 543 U.S. 220
(2005), the district court has discretion to reduce a defendant’s sentence below the amended
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09‐2323 Page 2
guidelines range. Johnson conceded that his argument was foreclosed by Cunningham but
wished to preserve the issue in light of the Supreme Court’s grant of certiorari in United
States v. Dillon, 572 F.3d 146 (3d Cir. 2009), cert. granted, 130 S. Ct. 797 (2009), a case that
presented the same issue. We issued an order on January 26, 2010, holding Johnson’s
appeal until the decision in Dillon; the Supreme Court issued its opinion on June 17, 2010.
Dillon v. United States, 130 S. Ct. 2683 (2010).
Dillon held that neither Booker’s constitutional holding nor its remedial holding
applies to § 3582 proceedings, and so the limitations that § 1B1.10 places on sentence
modifications under § 3582(c)(2) are mandatory rather than advisory. Id. at 2693. The
Supreme Court stated in Dillon that Ҥ 3582(c)(2) represents a congressional act of lenity
intended to give prisoners the benefit of later enacted adjustments to the judgments
reflected in the Guidelines.” Id. at 2692. In United States v. Neal, No. 08‐3611, 2010 WL
2652463, at *1 (7th Cir. July 6, 2010), we followed Dillon in a published opinion, noting that
“neither the statute nor the Constitution requires the judge to conduct a full resentencing in
response to a [sentence‐reduction] motion.”
Our holding in Cunningham is fully consistent with Dillon: because a sentence
modification is not a full resentencing, Booker does not apply and district courts are bound
by the minimum amended guidelines range. See Cunningham, 554 F.3d at 707‐08.
Accordingly, the district court lacked authority to reduce Johnson’s sentence beyond the
two levels permitted by the amended guidelines.
AFFIRMED.

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