(r,

IN TIIE T'NITED STATES DISTRICT COT'RT

FOR TIIE NORTHERN DISTRICT OF ILLINOIS

EJASTERN DIVISION

I'NITED STATES OF A!{ERICA

v.

SEDG'WICK iIOIINSON

Case No. 01

iludge Harry

543

Leinenweber

CR

D.

MEMORA}IDI'M OPINION E}ID ORDER

For the reasons stated herein, Sedgwick Johnson's Motion to

Reduce Sentence Under the First Step Act (Dkt. No. 231) is granted.

I. BACKGROT'IID

On July 25, 200t, a federal grand jury returned an indictment

charging Johnson and his co-defendants Kalonj i McMillian and

Raymond Cooper with: (1) one count of conspiracy to possess with

intent to distribute more than 50 grams of a mixture containing

cocaine base ("crack cocaine") and more than 500 grams of a mixture

containing cocaine ("powder cocaine"), in violation of 2L U.S.C.

S 846; (2) one count of possession with intent to distribute more

than 500 grams of powder cocaine in viol-ation of 27 U.S.C.

S 841 (a) (1) ; and (3) one count of possession with intent to

distribute more than 50 grams of crack cocaine in violation of 2L

U.S.C. S 841(a) (1). The case against Johnson and hj-s co-defendants

proceeded to trial by jury on October 15, 2002.
On October 22,2002, the jury found Johnson guilty on all

three charges. Pursuant to count one, the jury made a specific

finding that Johnson had participated in the distribution of more

than 50 grams of crack cocaine and more than 500 grams of powder

cocaine.

Johnson was sentenced on January 30, 2003. The sentencing

court found Johnson to be a "career offender" under the U.S.

Sentencing Guidelines SS 4B1.1 and 48L.2, and calcufated his

criminal history category as VI and his total offense level as 31.

The court sentenced Johnson to a 360-month term of imprisonment on

al-l three counts (which was the low end of the then-applicable

guidelines range of 350 months to life), to run concurrently with

each other. The court also sentenced Johnson to five years of

supervised release on counts one and three, and four years of

supervised release on count two, to run concurrently with each

other. To date, Johnson has served approximately 216 months of his

sentence.

Johnson now moves this Court for a reduced sentence under

Section 404 of the Elrst Step Act of 20L8, Pub. L. No. 115-391,

732 Stat. 5194 (20L8 ) ("the First Step AcL") , and Sections 2 and

3 of the Fair Sentencing Act of 2010, Pub. L. No. 7Ll-220,724

Stat. 2312 (2010) ("the Eair Sentencinq Act") . Johnson requests

that the Court reduce his 360-month sentence for distribution of
crack cocaine to a 262-monlh sentence-the low end of the currently

appllcable guidelines range.

II. DISCUSSION

The First Step Act effectlvely makes the provisions of the

Fair Sentencing Act, passed in 2070, retroactive. Section 404 of

the First Step Act states, in rel-evant part:

(a) DEFINTION OF COVERED OEEENSE. In this section, the

term "covered offense" means a viol-ation of a Federal

crimlnal statute, the statutory penalties for which were

modified by section 2 or 3 of the Fair Sentencing Act of

2070 (Public Law Lll-220; 724 Stat. 2312) , that was

committed before August 3, 2010.

(b) DEFENDANTS PREVTOUSLY SENTENCED. A COUTT thAt

i-mposed a sentence for a covered offense frdY, on motion

of the defendant, the Dj-rector of the Bureau of Prisons,

the attorney for the Government, or the court, impose a

reduced sentence as if sections 2 and 3 of the Fair

Sentencing Act of 2010 (Public Law 7L7-220; 724 Stat.

2312) were in effect at the tlme the covered offense was

committed.

PL 115-391. Rel-ief under the Eirst Step Act is discretionary. Id.

S 404 (c) ("Nothing in this section sha.Il be construed to require

a court to reduce any sentence pursuant to this section. ")

A. Covered Offense

The First Step Act limits eligibility to "covered offenses. "

See PL 115-391 S 404. When Johnson was charged, tried, and

sentenced, the statutory sentence for possession with an intent to

distribute 50 grams or more of crack cocaine was ten years to Life.

27 U.S.C. S 841(b) (1) (A) (2003) . The Fair Sentencinq Act raised

the amount of crack cocaine that triggered that statutory sentence
from 50 grams to 280 grams. 2I U.S.C. S 841(b) (1) (A) (20L9). The

Eair Sentencing Act set the statutory penalty for more than 2B but

Iess than 280 grams of crack cocaine aS between five- and 40-

years' imprisonment. 21 U.S.C. S 841(b) (1) (B) (ii-i) (20L9) -

Therefore, Johnson argues, the Eair Sentencing Act modifled the

statutory penalty for hls violation of 27 U.S.C. S 841(a) (1),

rendering his offense a "Covered offense" under the Eirst Step

Act.

The Government argues that Johnson is not eligible for relief

under the First Step Act because "the record confirms" that the

quantity of crack cocaine "involved" in Johnson's offense was over

280 grams, such that the Eair Sentencj-ng Act would not have

modified the applicable statutory penalty. (Gov.'s Resp. at 5,

Dkt. No. 240.) The Government cites to the following aspects of

the "record" to support its posj-tion: ( 1 ) the Presentence

Investigatj-on Report (*PSR") that the U.S. Probation Office

prepared prior to Johnson's sentencing, in which the Probation

Office wrote that Johnson was "found guilty of possession and/or

distributing and conspirlng to distribute approximately one

kilogram of cocaine base and one kilogram of cocaine" (Gov.'s Resp.

at 3); and (2) the sentencing court "found... that IJohnson] was

responsible for one kilogram of cocaine and one kilogram of crack

cocaine." (Gov.'s Resp. at 5.) Thus, the Government asserts that

Johnson's violations "involvIed] crack cocaine quantities that
exceeded 280 grams" (Dkt. No.240 at 5), rendering his offenses

ineligible for the reduced statutory penalty brought about by the

Fair Sentencing Act.

Johnson urges that the Government's interpretation of the

Eirst Step Act is wrong on the facts and the law. First, dS to the

facts, Johnson asserts that the Government's position is erroneous

because neither the jury nor the sentencing court found Johnson

responsible for a specific quantity of crack cocaine above 50

grams. Johnson is right. Johnson was charged via indictment with

conspiracy to distribute, and distributlon of, "in excess of 50

grams of [crack cocaine]." (Indictment at l, J, Dkt. No. L1.) The

jury found Johnson "guilty as charged in the Indictmefrt," and in

an interrogatory, found that the amount of crack cocaine involved

1n the conspiracy to distribute was "more than 50 grams." (Verdict,

Dkt. No. 84.) The jury made no specific finding as to any quantlty

above 50 grams. Furthermore, contrary to the Government's

assertion, the sentencing court made no findings regarding a

specific quantity of crack cocaine. (See qeneraTTy Sentencing

Transcript, Ex. C to Johnson's Reply, Dkt. No. 244.) The sentencing

court did not explicitly adopt the flndlngs in the PSR. (fd.) That

court agreed with the PSR's determination of Johnson's total

offense level and criminal- hlstory category. (Id. at 19:4-24.)

However, in sentencing Johnson, the court stated only that it was

sentencing Johnson to 360 months "because of the circumstances."
(Id. at 28:20-22.) It never indicated that it was holding Johnson

responsible for one kilogram of crack cocaine.

Next, the law. The Supreme Court has held, with l-imited

exception, that any fact that enhances a statutory penalty must be

proven beyond a reasonable doubt:

Any fact that, by 1aw, increases the penalty for a crime

is an "element" that must be submitted to the jury and

found beyond a reasonable doubt. Mandatory minimum

sentences increase the penalty for a crime. It follows,

then, that any fact that increases the mandatory minimum

j-s an "element" that must be submitted to the jury.

Alteyne v. United States,570 U.S. 99,103 (2073) (citatlon

omitted) ; see aLso Apprendi v. l'/ew Jersey, 530 U.S. 465, 4'76-1'7

(2000). Recently, district courts have rejected the Government's

positlon as being contrary to Al-Leyne and Apprendi:

In the government's view... the drug quantity that matters

1n determining whether a defendant was sentenced for a

"covered offense" withj-n the meaning of the Eirst Step

Act is not the statutory quantity in the indictment but

the quantity found by the Court at sentencing. The

government's interpretation of section 404 would

preclude a court from granting rel-ief when, ds in this

case, the record contains a judicial finding of a drug

quantity of 280 grams or more of crack cocaine based on

a preponderance of the evidence. Today, with limited

exception, any fact that enhances a statutory penalty

must be proven beyond a reasonable doubt.

United States v. Affen, No. 3:96-CR-00149, 2019 WL 1811012, at *2-

4 (D. Conn. Apr. 26, 2079) .

Interpreting the plaln language of the First Step Act,

district courts have hel-d that it is "the statute of conviction,

not actual conduct, that control-s eligibility under the Eirst Step
Act." [Jnited States v. Davis, No. 07-CR-2455,2019 WL 1054554, at

*2 (W. D.N.Y. Mar. 6, 2079) ; United States v. Martin, No. 03-CR-

'795, 2019 WL 1558817, at *3 (E.D.N.Y. Apr. 70, 2079)

(same), vacated as moot (Apr. 22, 2079) . A district court tn United

States v. Pierre, 312 F. Supp. 3d 7J , 22-23 (D. R. I. 20L9) ,

explai-ned that delvlng into the record is inappropriate on a First

Step Act motion:

The Court holds that, in determining whether a defendant

is ellgible for relief under S 404 of the Eirst Step

Act, the sentencing court should look to whether the

offense of conviction was modified by the Fair

Sentencing Act of 20L0 to determine eligibility; it

shoul-d refrain from delving into the particufars of the

record to determine how this specific defendant

committed his or her offense of conviction, and how those

facts woul-d have hypotheticaTly affected the charqes

brouqht against the defendant under the new statutory

regime.

United States v. Pierre, 312 F. Supp. 3d LJ, 22-23 (D.R.I. 2019)

(emphasis added) . The Pierre court noted that the Government's

approach is "problematj-c in several \tays," mostly significantly,

"it effectively requires the Court to employ a prosecutor-frlendly

'way-back machine' to conjure how the charge, p1ea, and sentencing

would have looked had the Eair Sentencing Act of 2010 been in

effect. " Id. at 22.

The Court concurs with the growing number of district courts

that have rejected the Government's posltion. Under A17eyne, the

Government cannot rely on a drug quantity that the Probation Office

included in the PSR, when that drug quantlty differed dramatically
from the quantity found by the

statutory penalty. Ultimately,

by facts submitted to a grand

jury, to hol-d Johnson

statutory penalties are

jury, a trial jury, or

to a higher

determined

established

by a guilty plea. United States v. Simons, 375 F. Supp. 3d 319

(E.D.N.Y. 20L9) (interpretlng the First Step Act in light of

AlTeyne). In Johnson's case, there simpJ-y was not a finding beyond

a reasonable doubt that Johnson conspired to dlstribute any

specific amount of crack cocaine over 50 grams, Iet afone a findlng

that he conspired to dlstribute 280 grams. The statute that Johnson

vlolated is one for which the statutory penalties were modified by

section 2 or 3 of the Fair Sentencing Act. Therefore, Johnson's

offense is "covered" under the First Step Act, and he is eligible

for a sentence reduction.

The Court turns to

Sentence Reduction

its determinati-on of Johnson's reduced

sentence. Johnson argues that the "career offender" offense l-evel

applicable to the lowered 40-year maximum sentence is 34, pursuant

to U.S.S.G. S 4B1.1(b) (1).An offense level- of 34 combined with

Johnson's criminaf history category of VI (which remains

unchanged), corresponds to a Guidelines range of 262 to 327 months.

Johnson requests a new sentence of 262 monLhs, the fow end of the

new Guidel-ines range for his offense, because the Court orlginally

sentenced Johnson to 360 months, the then-Iow end of his 360 months

to life range.

B
Johnson sets forth several arguments in support of a reduced

sentence in his case. First, he has been a "modef prJ-soner" during

his almost 1B years of imprisonment. To this end, Johnson has

submitted a lengthy transcript of cfasses and programs he has

participated in while incarcerated, and states that he has had no

disciptlnary violations. (See Ex. D to Johnson's RepIy.) Second,

Johnson is now 51 years ol-d. The U.S. Sentencing Commission has

found that the "recidivism rate begi-ns to decllne substantj-a1Iy"

at the age of 50. See United States v. Tucker, 355 F. Supp. 3d

B0B, 810 (S.D. fowa 2079). Thlrd, Johnson's co-defendants received

shorter sentences than Johnson because they were not "career

offenders"-Cooper recej-ved 240 months and McMil-l-1an recelved 151

months. (See Orders Reducing Sentences, Dkt. Nos. 212, 170.) Both

have served their time and been rel-eased. Fourth, a sentence

reduction in this case would achieve the purpose of the Fair

Sentencing Act and, undoubtedly, the First Step Act-to reduce

sentencing dlsparities in crack cocaine cases. See Dorsey v. United

States, 561 U. S. 260, 21 6 (2072) .

The Government does not argue that, if the Court finds Johnson

eliglble for sentence reduction, Johnson is somehow not deserving

of said reduction. Thus, it appears to the Court that the

Government does not object to a sentence reduction if Johnson is

eligible. Accordingly, and because Johnson has raised severalmeritorious arguments in favor of a reduced sentence, the Court
reduces his custodial sentence from 360 months to 262 months on

counts one, two and three, to run concurrently with each other. As

Johnson has not requested a reduction in his previ-ously-ordered

term of supervised release, the Court leaves his terms of

supervised refease intact..

IIT. CONCLUSION

For the reasons stated herein, Sedgwick Johnson's Motion to

Reduce Sentence Under the Flrst Step Act (Skt. No. 240) is granted.

The Court reduces his custodial sentence from 360 months to 262

months.

If, IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

Dated:6/24/2019

10