UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

TUESDAY SHALON JOHNSON, 

 Defendant-Appellant. 

No. 16-6248 

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

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. 

_________________________________ 

Federal prisoner Tuesday Shalon Johnson, proceeding pro se, appeals the district 

court’s denial of her motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). 

Exercising jurisdiction under 28 U.S.C. § 1291, we agree with the denial of her motion 

and remand for dismissal without prejudice for lack of jurisdiction. 

 

*

 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 This order and judgment is not binding precedent, 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. It may 

be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 

10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 30, 2016

Elisabeth A. Shumaker 

Clerk of Court
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Ms. Johnson pled guilty to distribution of crack cocaine in violation of 21 U.S.C. 

§ 841(a)(1). The district court sentenced her to 240 months in prison and concluded she 

was a career offender under United States Sentencing Guideline § 4B1.1. 

In May 2016, Ms. Johnson filed a § 3582(c)(2) motion for sentence reduction 

based on Amendment 782 to the Guidelines. The district court denied the motion 

because the amendment did not change Ms. Johnson’s Guidelines range. 

On appeal, Ms. Johnson’s sole argument is that her status as a career offender and 

her 240-month sentence is contrary to Johnson v. United States, 135 S. Ct. 2551 (2015). 

In Johnson, the Supreme Court held that the residual clause in the definition of “violent 

felony” in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), was 

unconstitutionally vague under the Due Process Clause. 135 S. Ct. at 2557-59. 

We reject Ms. Johnson’s argument for two reasons. First, Ms. Johnson cannot 

bring her constitutional argument under § 3582(c)(2). The statute allows a sentence 

reduction only when “a [prisoner’s] sentencing range . . . has subsequently been lowered 

by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). It does not allow prisoners to 

challenge the constitutionality of their sentence. United States v. Gay, 771 F.3d 681, 686 

(10th Cir. 2014) (“Nothing in the limited congressional grant of authority to modify 

sentences provided by § 3582(c)(2) allows [a prisoner] to challenge the constitutionality 
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of his sentence.”). Thus, Ms. Johnson’s due process argument under the Supreme 

Court’s Johnson decision cannot support a sentence reduction under § 3582(c)(2).1

 

Second, Ms. Johnson’s argument fails on the merits. The Johnson decision affects 

only sentence enhancements under the residual clause of the ACCA based on crimes of 

violence. 135 S. Ct. at 2555. But Ms. Johnson’s career offender designation was based 

on two prior convictions for drug distribution—not crimes of violence. The Johnson 

decision is therefore inapplicable to Ms. Johnson’s sentence. 

We remand the matter to the district court with instructions to vacate the order 

denying the motion and enter a new order dismissing Ms. Johnson’s § 3582(c)(2) motion 

without prejudice for lack of jurisdiction. See United States v. White, 765 F.3d 1240, 

1250 (10th Cir. 2014) (stating “dismissal for lack of jurisdiction rather than denial on the 

merits is the appropriate disposition of [the prisoner’s] § 3582(c)(2) motion”); United 

States v. Graham, 704 F.3d 1275, 1279 (10th Cir. 2013) (stating “dismissal rather than 

 

1

 The proper method to bring a constitutional attack on a sentence is a 28 U.S.C. 

§ 2255 motion. In September 2010, Ms. Johnson filed two § 2255 motions that the 

district court denied. No. 5:10-cv-01060-M, Dist. Ct. Doc. 1, 2; No. 5:09-cr-00021-M, 

Dist. Ct. Doc. 595, 598. In June 2016, Ms. Johnson filed a motion seeking authorization 

to file a second or successive § 2255 motion that we denied. No. 16-6184, Doc. 

01019670661; No. 5:09-cr-00021-M, Dist. Ct. Doc. 887. 
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denial is the appropriate disposition” when sentence reduction is not authorized by 

§ 3582(c)(2)). 

ENTERED FOR THE COURT, 

Scott M. Matheson, Jr. 

Circuit Judge