Opinion
CASE No. 1:11-cr-49
2024-01-29
UNITED STATES of America, Plaintiff, v. Shane Dewayne JOHNSON, Defendant.
Jennifer L. McManus, U.S. Attorney, Grand Rapids, MI, for Plaintiff.
Jennifer L. McManus, U.S. Attorney, Grand Rapids, MI, for Plaintiff.
OPINION AND ORDER
ROBERT J. JONKER, UNITED STATES DISTRICT JUDGE
INTRODUCTION
Defendant Johnson was convicted following a jury trial of being a felon in possession of a firearm. (ECF No. 38). He was sentenced as an armed career criminal to 292 months in prison. His conviction and sentence were affirmed on appeal, and a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 was denied. In addition to his Section 2255 motion, Defendant has sought on several occasions to challenge his federal conviction, as well as the predicate state court convictions underlying his armed career criminal status. Those motions have all been denied.
The matter before the Court is on Defendant's January 2, 2024, motion for compassionate release. (ECF No. 91). In his motion Defendant primarily seeks an early release by once again challenging the circumstances of his federal conviction and his state court predicate offenses. Defendant recognizes that the Sixth Circuit Court of Appeals has determined that compassionate release is not an end run around habeas corpus relief and is not available to remedy claimed sentencing errors. And indeed, the Court of Appeals has determined as much in several opinions. See United States v. McCall, 56 F.4th 1048 (6th Cir. 2022); United States v. West, 70 F.4th 341 (6th Cir. 2023). Nevertheless, Defendant claims that he is not raising any arguments that would be barred by these cases; he is simply highlighting the issues. The Court does not entirely agree. But more fundamentally, the Court determines that Defendant has not shown an extraordinary or compelling reason for a sentence reduction consistent with the applicable policy statements in the United States Sentencing Guidelines. Moreover, the Section 3553 factors augur against early release. Accordingly, the motion is denied.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was convicted following a jury trial of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e)(1). The presentence report determined Defendant to be an armed career criminal, see U.S.S.G. § 4B1.4, based on prior state court convictions for assault with intent to do great bodily harm less than murder, assault with a dangerous weapon, and delivery/manufacturer of less than 50 grams of cocaine. See United States v. Johnson, No. 17-1068 (6th Cir. Oct. 2, 2017) (order at ECF No. 85). The Court sentenced him to 292 months custody and 3 years of supervised release, the bottom end of the advisory Guidelines range of 292 to 365 months. The Sixth Circuit Court of Appeals affirmed his conviction and sentence. United States v. Johnson, No. 11-2598 (6th Cir. Aug. 21, 2013) (order at ECF No. 61). The Supreme Court denied his petition for a
writ of certiorari. Johnson v. United States, 571 U.S. 978, 134 S. Ct. 484, 187 L.Ed.2d 327 (2013).
In 2014, Defendant filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The motion raised three grounds of ineffective assistance of counsel: 1) allegedly failing to convey a state court plea offer; 2) failure to object to an alleged constructive amendment to the indictment; and 3) improperly conceding Defendant was an armed career criminal. See Johnson v. United States, Case No. 1:14-cv-1066 (W.D. Mich. Oct. 14, 2014) (motion at ECF No. 1). The Court denied the Section 2255 motion in a written decision dated October 15, 2015. Id. at ECF Nos. 18, 19 and 20. The Court of Appeals denied Defendant's application for a certificate of appealability. Johnson v. United States, No. 15-2554, 2016 WL 10674029 (6th Cir. Aug. 29, 2016).
In 2016, Defendant filed a motion for relief from judgment in Michigan State court seeking to overturn his prior convictions of delivery/manufacture of cocaine and felonious assault. The State court subsequently denied Defendant's motion. See United States v. Johnson, No. 17-1068 (6th Cir. Oct. 2, 2017) (order at ECF No. 85). Later that year, Defendant filed a Rule 36 motion in his federal case, asking this Court to correct the record regarding his State court convictions. (ECF No. 70). And in March 2017, Defendant filed a motion under Rule 12 to dismiss the federal Indictment. (ECF No. 76). The Court denied both motions. (ECF Nos. 71 and 78). Defendant appealed the denial of his Rule 36 motion and the Court of Appeals affirmed the Court's decision on October 2, 2017. United States v. Johnson, No. 17-1068 (6th Cir. Oct. 2, 2017) (order at ECF No. 85).
Meanwhile, and after the State court adjudication of Defendant's motion for relief from judgment, Defendant sought to overturn his prior conviction for assault with a dangerous weapon via a Section 2254 habeas petition. Johnson v. Michigan, Case No. 1:17-cv-598 (W.D. Mich. June 30, 2017) (petition). The petition was dismissed on August 23, 2017, for failure to pay the filing fee. Id. at ECF No. 5 (order). Defendant refiled his petition on May 15, 2018. Johnson v. Michigan, Case No. 1:18-cv-551 (W.D. Mich. May 14, 2018) (petition). On December 17, 2018, the Court adopted the Magistrate Judge's Report and Recommendation that the petition be dismissed as a time-barred. Id. at ECF Nos. 6, 7 (order and judgment).
On August 18, 2021, Defendant returned to his criminal case and filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). (ECF No. 89). In his motion, Defendant sought to challenge his armed career criminal status and claimed that the Section 3553 factors counseled in favor of a reduction. The court denied the motion on September 7, 2021. The Court observed that Defendant was making the same arguments that he raised, and lost on, in his Section 2255 motion and on which the Sixth Circuit Court of Appeals had denied a certificate of appealability. (ECF No. 90, PageID.862). The Court further observed that Defendant's argument in favor of a reduction that "the sentencing landscape has changed" was foreclosed by the Sixth Circuit's decision in United States v. Hunter, 12 F.4th 555, 563 (6th Cir. 2021).
On January 2, 2024, Defendant filed a second motion seeking compassionate release. (ECF No. 91). The motion raises three primary arguments for a sentence reduction, all of which have been raised in some permutation before. First Defendant claims that when he was arrested for the conduct leading to his federal conviction, he initially faced charges in State court. He insists that the counsel who represented
him in those proceedings failed to convey a plea offer, and that had counsel done so, Defendant would have pleaded to a State offense, and would not have been prosecuted in federal court. In his second and third arguments, Defendant challenges his ACCA status by claiming that if sentenced today, his State conviction for delivery/manufacturer of less than 50 grams of cocaine would not qualify as a serious drug offense.
LEGAL STANDARDS
Title 18 U.S.C. § 3582(c)(1)(A)(i) permits courts, when "warrant[ed]" by "extraordinary and compelling reasons" to reduce a defendant's sentence. Under United States v. Alam, 960 F.3d 831 (6th Cir. 2020), the Court must first be satisfied that defendant has exhausted his compassionate relief request in the BOP. If so, then under United States v. Ruffin, 978 F.3d 1000 (6th Cir. 2020), the Court must proceed with a "three-step inquiry." See United States v. McCall, 56 F. 4th 1048, 1054 (6th Cir. 2022) (en banc). Under this approach, the Court must first determine whether the defendant has identified an extraordinary and compelling basis for relief. Second, courts must "confirm that any sentence reduction 'is consistent with applicable policy statements issued by the Sentencing Commission.'" Id. (quoting 18 U.S.C. § 3582(c)(1)(A)). And third, "defendants must persuade the district judge to grant the motion after the court considers the § 3553(a) factors." Id.
Until recently this three-step analysis was, in practice, a two-step analysis as to defendant-filed motions. This is because when the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 ("the First Step Act") changed the compassionate release statute to permit defendant-filed compassionate release motions, the Sentencing Commission had not updated its policy statement to include defendant-filed motions. McCall, 56 F.4th at 1054. Nor did the Commission have a quorum to act at the time. Thus, in United States v. Jones, 980 F.3d 1098 (6th Cir. 2020), the Sixth Circuit simplified the analysis by concluding that U.S.S.G. § 1B1.13 was not a policy statement that limits a court's consideration of a compassionate release motion. This eliminated, for a time, the need for this Court to analyze a defendant's request for consistency with U.S.S.G. § 1B1.13. See also United States v. Elias, 984 F.3d 516, 519 (6th Cir. 2021) (reaffirming Jones's holding that § 1B1.13 at the time was "not an applicable policy statement for compassionate-release motions brought directly by inmates, and so district courts need not consider it when ruling on those motions.").
The changes made by the First Step Act substantially increased the number of compassionate release motions filed in district courts and, especially in the absence of applicable policy statements to defendant filed motions, courts wrestled with what amounted to "extraordinary and compelling reasons" for compassionate release. One area of particular significance was whether nonretroactive changes in sentencing law could constitute an extraordinary and compelling reason for a sentence reduction. Several panels of the Sixth Circuit Court of Appeals came to different results on the question but finally in McCall, an en banc decision by the Court of Appeals determined that nonretroactive legal developments do not factor into the extraordinary or compelling analysis. The court reasoned that the habeas and compassionate release statutes served different purposes and that a contrary outcome would improperly blur the lines between the two provisions. The text of the compassionate release statute, combined with the principles, structure, and history of sentencing law, the court determined, meant
that retroactive changes in sentencing law were not "extraordinary or compelling reasons" for a sentence reduction. McCall, 56 F.4th at 1054-1055. Later, in United States v. West, 70 F.4th 341 (6th Cir. 2023), the Court of Appeals reinforced McCall's holding that compassionate release cannot provide an end run around habeas, and determined that claimed sentencing errors do not amount to extraordinary or compelling reasons for compassionate release. Id. at 346; see also United States v. Bolze, Case No. 22-5510, 2023 WL 8797456, at *2 (6th Cir. Aug. 10, 2023) (applying West and holding claimed sentencing error did not amount to extraordinary or compelling reason for compassionate release); United States v. Fuentes-Majano, Case No. 22-6085, 2023 WL 8868782, at *2-*3 (6th Cir. Oct. 3, 2023) (same).
In August 2022, the Sentencing Commission reached a quorum, and last spring the Commission promulgated a proposed amendment to U.S.S.G. § 1B1.13—the policy statement that elaborates on the criteria for compassionate release—to apply the policy statement to defendant-filed motions. See Notice of Submission to Congress of Amendments to the Sentencing Guidelines, 88 Fed. Reg. 28254, 28254-59 (May 3, 2023). The amendment took effect last fall in the absence of contrary action by Congress, and now appears in the current version of the sentencing guidelines. See U.S.S.G. § 1B1.13 (2023). In addition to updating the policy statement to apply to defendant-filed motions the amendment made a substantive change to the policy statement by adding a new Section 1B1.13(b)(6) that now reads:
If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant's individualized circumstances.
U.S.S.G. § 1B1.13(b)(6). To date, the Sixth Circuit Court of Appeals has not addressed how, if at all, the updated policy statement applies to the McCall and West line of cases.
DISCUSSION
A. Absence of Extraordinary and Compelling Reasons for Sentence Reduction
None of the three arguments in Defendant's motion amount to an extraordinary and compelling reason for a sentence reduction.
1. State Plea
To begin, Defendant's primary argument reiterates the contention he first made in his Section 2255 motion, namely, that the lawyer who represented him in State court proceedings allegedly failed to convey a plea offer that Defendant says he would have accepted if properly tendered. But for counsel's failure to convey the state plea offer, Defendant says, he would not have been prosecuted in federal court. This argument fails to demonstrate and extraordinary and compelling reason for a sentence reduction.
This Court previously found a question of fact as to whether Defendant was made aware of a plea offer from the state prosecuting attorney. Johnson v. United States, No. 1:14-cv-1066, 2015 WL 6040306 (W.D. Mich. Oct. 15, 2015) (opinion at ECF No. 18, PageID.125). The Court determined, however, that there was no pathway for
relief because a federal court may dismiss a federal indictment to remedy a constitutional violation in state-court proceedings only in limited circumstances, none of which were raised by Defendant in his motion. Id. Such circumstances primarily arise where the federal prosecutor is entangled in the State court plea process. See id. (citing United States v. Morris, 470 F.3d 596 (6th Cir. 2006)). The Sixth Circuit Court of Appeals subsequently denied Defendant a certificate of appealability on this argument. Johnson v. United States, Case No. 1:14-cv-1066 (6th Cir. Aug. 29, 2016) (order at ECF No. 26, PageID.161-162).
Defendant's argument fares no better here. The Sixth Circuit Court of Appeals "has predominantly defined what can constitute 'extraordinary and compelling' reasons for release by defining what circumstances cannot be 'extraordinary and compelling.'" West, 70 F.4th at 346. So, for example, "facts that existed at sentencing cannot later be construed as 'extraordinary and compelling reasons' to reduce a final sentence." United States v. Hunter, 12 F.4th 555, 570 (6th Cir. 2021). Indeed, the compassionate release provision's "text and structure, together with its narrow scope, show that identifying 'extraordinary and compelling reasons' is a task that focuses on post-sentencing factual developments." Id. at 569. And, as noted above, the Court of Appeals has determined that compassionate release cannot serve as an end run around habeas in Section 2255 motions. It is true that in its decision addressing Defendant's Section 2255 motion, the Court observed that Defendant's Mom's-based argument was no basis for relief in a federal habeas action. But that does not mean that Defendant has demonstrated an extraordinary and compelling basis for relief.
But even if this argument could sometimes amount to an extraordinary and compelling reason for compassionate release, it does not do so here. In his motion, Defendant attempts to align his case closer to Morris by presenting facts that, he says, demonstrate the federal prosecutors were entangled in the state plea negotiations. He has not made this showing. The materials simply demonstrate an email conversation between Defendant's State court attorney and the State prosecutor. In them, the prosecutor represented that the federal prosecutor, at the time of the email, was not familiar with Defendant's case but had indicated that if the case was resolved in State court with a gun charge the prosecutor would "not be inclined" to take the case. See Johnson v. United States, No. 1:14-cv-1066 (W.D. Mich. Jan. 6, 2015) (ECF No. 9-3, PageID.29). This does not demonstrate the type of entanglement that would entitle Defendant to any relief under Morris.
Moreover, after November 1, 2023, the Court must also determine whether a reduction would be consistent with the Section 1B1.13 policy statements. These include, 1) Medical Circumstances of the Defendant; 2) Age of the Defendant; 3) Family Circumstances of the Defendant; 4) Victim of Abuse; 5) Other Reasons; and 6) Unusually Long Sentence. U.S.S.G. § 1B1.13(b)(1)-(6). Of these, only the catchall at U.S.S.G. § 1B1.13(b)(5) possibly applies to this argument. That provision provides that a reduction is consistent with the policy statement where the defendant "presents any other circumstance or combination of circumstances that, when considered by themselves or together with any of the [first four specified paragraphs] are similar in gravity to those described in" the first four paragraphs. Id. Defendant's argument based on Morris is not consistent with the policy statement because,
at a minimum, he has not demonstrated the entanglement of the federal prosecutor in the state plea process.
In sum, even if a Morris based argument could amount to an extraordinary and compelling reason for a sentence reduction, Defendant's argument has already been decided against him, and he offers nothing new in his compassionate release motion that would lead to a contrary result.
2. ACCA Status
The ACCA provides that if a defendant convicted under § 922(g) has three previous convictions for a violent felony or a "serious drug offense," he is subject to a mandatory minimum sentence of 15 years' imprisonment. A serious drug offense includes a state law offense "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii). In his second and third bases for compassionate release, Defendant claims that his State predicate conviction for delivery/manufacture of cocaine no longer qualifies as a serious drug offense, meaning that if sentenced today he would not qualify as an armed career criminal.
Defendant's second argument implicates the line of cases beginning with Mathis v. United States, 579 U.S. 500, 504, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Defendant contends that the plea transcript of that conviction demonstrates that he pled guilty to simple possession only, which he says does not qualify as a serious drug offense. And in his third argument, Defendant reasons that because he served less than twelve months imprisonment for this offense, his conviction cannot amount to a serious drug offense. Defendant's contentions fail for a number of reasons. First, they fall squarely within McCall's holding that nonretroactive changes in sentencing law cannot amount to extraordinary and compelling reasons for a sentence reduction. To be sure, McCall was decided before the Sentencing Commission's recent update to the policy statements. But McCall's holding was primarily based on the text of the compassionate release statute, along with the principles, structure and history of sentencing law; not the absence (at the time) of applicable policy statements. McCall, 56 F.4th at 1054-1055.
But even if there was a pathway around McCall, whether through the updated policy statement or otherwise, Defendant has not demonstrated a change in law in any event. Indeed, in its decision on Defendant's Section 2255 motion post-dating the Mathis decision, the Sixth Circuit Court of Appeals determined that Defendant's delivery/manufacture conviction qualified as a serious drug offense. Johnson v. United States, No. 15-2554, 2016 WL 10674029 (6th Cir. Aug. 29, 2016) (opinion at pg. 4). Beyond that, the transcript Defendant provides demonstrates that Defendant did, in fact, admit to possession of cocaine with intent to deliver. (ECF No. 91-7, PageID.903).
Finally, Defendant's contention regarding the length of his incarceration represents a misapprehension of the law. The First Step Act did not alter the definition of "serious drug offense" that serves as a qualifying conviction under 18 U.S.C. § 924(e)(2)(A). It did amend a separate statute, 21 U.S.C. § 841(b)(1)(A) & (B), by changing qualifying convictions for enhanced sentences under these sections from "felony drug offense[s]" to "serious drug felon[ies]." The latter term now builds on the definition of a serious drug offense in Section 924(e)(2). See First Step Act at § 401(a). But those changes do not impact Defendant's ACCA status. That leaves Defendant with rehabilitation. But the problems here are two-fold. First, as Defendant forthrightly acknowledges, he does not have a clean disciplinary record while in custody. And, second, even if there are mitigating considerations on these issues, "Congress was emphatically clear that '[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason'" for compassionate release. Hunter, 12 F.4th at 572 (citing 28 U.S.C. § 994(t)). Accordingly, Defendant has not demonstrated an extraordinary or compelling reason, either on its own or combined, for compassionate release.
B. Section 3553 Considerations
Even if Defendant could show something extraordinary and compelling consistent with the Sentencing Commission's policy statements, the Section 3553 factors would augur against relief. Defendant was sentenced to the bottom end of the guideline range. He was sentenced under the cross reference to U.S.S.G. § 2X1.1 because he possessed the subject firearm in connection with the May 2010 shooting of Alexander Murray. The sentence the Court imposed remains correct based on a full consideration of the sentencing factors. Reducing Defendant's sentence now would undermine the purposes of the original sentence. It would also fail to reflect the serious nature of the offense and to promote specific and general deterrence.
CONCLUSION
ACCORDINGLY, IT IS ORDERED that Defendant's pro se motion for compassionate release (ECF NO. 91) is DENIED.