1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA ,
v. Criminal Action No. 02
- 0310 (JDB) KEVIN JOHNSON , Defendant.

MEMORANDUM OPINION & O RDER Before the Court is [ 38 ] Johnson’s motion for a sentence modification under 18 U.S.C. § 3582(c)(2). For the following reasons, the motion will be denied. On June 19, 2002, members of the Metropolitan Police Department were patrolling in the 400 block of K Street, SE, in Washing ton, DC

. See Compl. & Statement of Facts [ECF No. 1]. Upon seei ng the police officer s , Johnson ran away , clutching his waistband; as he ran, he was observed throwing a pink object into the bushes. Id. Johnson was stopped , and police recovered a number of small pink bags containing a white powder and substance , which field

- tested positive for opiates , and a loaded semiautomatic handgun

. Id. A search of the defendant also revealed $543.25 and three hand

- rolled cigarettes containing illicit drug material

. Id. Johnson was charged with three counts: (1) unlawful possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) , (b)(1)(C); (2) using, carrying , and possessing a firearm during a drug trafficking offense, in violation of 18 U. S.C. § 924(c)(1); and (3) unlawful possession of a firearm by a person convicted of a crime punishable by imprisonment of one year or more, in violation of 18 U.S.C. § 922(g)(1). See Indictment [ECF No. 6] at 1

– 2. Following a jury trial, Johnson was f ound guilty on all counts. See Judgment [ECF No. 27] at 1. At the time of his sentencing, the applicable G uidelines range for Johnson was 262 to2 327 months of imprisonment. Id. at 6 . Johnson was sentenced in February 2003 to 322 months’ incarceration. Id. at 2

. The Court imposed a sentence of 262 months on the heroin possession offense ; 120 months’ incarceration on the felon

- in

- possession offense , to run concurrently with the heroin count ; and 60 months ’ incarceration for possession of a firearm du rin g a drug trafficking offense , to run consecutively to the other counts

. Id. at 2

. The Court ordered Johnson’s sentence to be followed by a period of six years’ supervised release for the heroin possession , and three years’ supervised release on the other counts , to run concurrently. Id. at 3

. On May 9, 2017, Johnson filed a petition to modify his term of imprisonment. See Pet

. for Modification of a n Imposed Term of Imprisonment Pursuant to 18 U.S.C. § 3582( c)(2) (“Def.’s Mot.”) [ECF No. 38 ] at 1

. He cl aims that he qualifies for a sentence reduction for Count O ne pursuant to the Sentencing Commission’s Amendment 782 , because he was sentenced to a term of imprisonment based upon a sentencing range that was subsequently lowered by the Sentencing Commission

. See Def.’s Mot. at 1

– 2. Amendment 782 reduces by two the base offense levels assigned to drug quantities in the Drug Quantity Table in U.S.S.G. § 2D1.1 (c) , which effectively lowers the Guidelines ’ minimum sentences for drug offenses. See U.S.S.G. sup p . to app. C, a mend 782. The Amendment became effective on November 1, 2014 and applies retroactively. Id. Johnson’s claim, however, fails for two reasons. First, Johnson received a career offender enhancement under U.S.S.G. § 4B1.1 , because he was at least eighteen years of age at the time of this conviction, the instant offense of conviction is a felony that is either a crime of violence or a controll ed substance offense, and he had at least two prior convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a) ; see Sentencing Tr. [ECF No. 33] at 5:12

– :18

. The base offense level on Count T hree

— possession of a firearm by a person convicted of a crime punishable by imprisonment by one year or more, in violation of 18 U.S.C. § 922(g)(1)

—3 was 24

. U.S.S.G. § 2K2.1(a)(2) ; see Sentencing Tr. at 4:4

– :8

. Johnson then received a ten

- level enhancement for Counts One and T hree , which brou ght the adjusted offense level to 34. 1 U.S.S.G. § 4B1.1(a)(1) ; see Sentencing Tr. at 5:12

– :24

. Because Johnson received the career offender enhancement, his base offense level , and therefore his sentencing guideline , was based on § 4B1.1, rather than on the drug quantity table in § 2D1.1. Amendment 782 therefore does n ot apply to him, because the amendment did not affect § 4B1.1. See, e.g. , United States v. Quintanilla , 868 F.3d 315, 320 & n.8 (5th Cir. 2017) (collecting cases) , cert. denied , 138 S. Ct. 1283 (2018)

. Second, even if the career offender enhancement did n ot apply to Johnson, Amendment 782 would not have change d the base offense level for his drug offense. The base offense level for Count O ne

— possession with intent to distribute heroin

— was 12, the lowest base offense level involving heroin. See U.S.S.G. § 2D1.1

. Johnson was in possession of 2.4 grams of heroin, and, at that time, § 2D1.1 imposed a base offense level of 12 for 5 grams or less of heroin

. See U.S.S.G. § 2D1.1 (a)(3 ), (c)(14) ( 2002 )

. Under the current version of the G uidelines, § 2D1.1 imposes a base offense level of 12 for 10 grams or less of heroin. See U.S.S.G. §§ 2D1.1 (a)(5), (c)(14) (2017)

. Therefore, his base offense level for the drug offense in Count O ne remains unchanged

. Johnson’s motion for a sentence reduction is therefore DENIED

. SO ORDERED

.

/s/ JOHN D. BATES United States District Judge Dated: April 30 , 2018

1 Count T wo

— using, carrying and possessing a firearm during a drug trafficking offense

— carried a five

year mandatory minimum, which had to run consecutive to any other term of imprisonment.