UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

TUESDAY SHALON JOHNSON, 

 Defendant - Appellant. 

No. 20-6095 

(D.C. No. 5:09-CR-00021-R-3) 

(W.D. Okla.) 

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ORDER AND JUDGMENT*

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Before MORITZ, BALDOCK, and EID, Circuit Judges. 

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Tuesday Johnson appeals the district court’s order denying her motion for a 

sentence reduction under the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 

5194, 5222. We affirm. 

Johnson pleaded guilty in 2009 to distributing cocaine base, also known as 

crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Neither the indictment nor the 

plea agreement specified a particular quantity of crack cocaine. Accordingly, the 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 

10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 25, 2021

Christopher M. Wolpert 

Clerk of Court
2 

statutory sentencing range for her offense was set by § 841(b)(1)(C), which 

established a lower range than subsections (b)(1)(A) and (b)(1)(B) and—unlike those 

sections—did not include a mandatory minimum sentence. The district court 

ultimately imposed the statutory maximum sentence of 240 months. See

§ 841(b)(1)(C). 

In 2019, Johnson filed a motion for a sentence reduction under the First Step 

Act, which allows a district court to impose a reduced sentence if the defendant was 

convicted of a covered offense committed before August 3, 2010, for which the 

statutory penalties had been modified by Section 2 or 3 of the Fair Sentencing Act of 

2010, Pub. L. No. 111-220, 124 Stat. 2372. The district court denied this motion, 

holding that Johnson was ineligible for relief under the First Step Act because the 

Fair Sentencing Act did not affect § 841(b)(1)(C)’s statutory penalties. 

In her opening brief on appeal, Johnson argued that the district court erred in 

finding that she was not eligible for relief under the First Step Act. But she concedes 

that this argument has now been foreclosed by the Supreme Court’s recent holding in 

Terry v. United States that a defendant sentenced under § 841(b)(1)(C) is not entitled 

to relief under the First Step Act because “the Fair Sentencing Act modified the 

statutory penalties only for subparagraph (A) and (B) crack offenses—that is, the 

offenses that triggered mandatory-minimum penalties.” No. 20-5904, 2021 WL 

2405145, at *5 (June 14, 2021). Because Terry conclusively resolved the only issue 
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Johnson raised in this appeal, we affirm. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge