USA v. Terry Johnson, No. 12-11048 (11th Cir. 2012)
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Case: 12-11048 Date Filed: 08/08/2012 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-11048 Non-Argument Calendar ________________________ D.C. Docket No. 9:08-cr-80103-DTKH-1 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee, versus TERRY JOHNSON, lllllllllllllllllllllllllllllllllllllll lDefendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (August 8, 2012) Before TJOFLAT, MARTIN and KRAVITCH, Circuit Judges. PER CURIAM: Case: 12-11048 Date Filed: 08/08/2012 Page: 2 of 3 Terry Johnson appeals the district court s denial of his pro se motion to reduce his total sentence, pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750 to the Sentencing Guidelines. Sentenced as a career offender, Johnson does not dispute that, under United States v. Moore, 541 F.3d 1323 (11th Cir. 2008), he would be ineligible for § 3582 relief, see id. at 1327 28. Nonetheless, he insists that he is entitled to a sentence reduction under § 3582 because the Supreme Court s intervening decision in Freeman v. United States, __ U.S. __, 131 S. Ct. 2685 (2011), effectively undermined Moore. However, in United States v. Lawson, No. 11-15912, slip. op. 1 (11th Cir. July 13, 2012), we rejected precisely the argument that Johnson advances here. In that case, we concluded that Freeman did not address defendants like Johnson, who were assigned a base offense level under one guideline section, but who were ultimately assigned a total offense level and guideline range under § 4B1.1 [the career-offender enhancement]. Id. at 6. Consequently, Freeman is not clearly on point to the issue that arose in Moore, id. at 7, thereby leaving Moore undisturbed as binding precedent, id. at 6. Lawson thus forecloses Johnson s argument. And since the rule set forth in Moore still applies, we conclude that Amendment 750 which altered only Johnson s base offense level does not affect the sentence that Johnson received 2 Case: 12-11048 Date Filed: 08/08/2012 Page: 3 of 3 pursuant to the career-offender guidelines. See id. at 3 7. The district court s denial of Johnson s motion for a reduction in his total sentence is therefore AFFIRMED. 3
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