USA v. Stephanie Johnson, No. 12-11670 (11th Cir. 2012)
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Case: 12-11670 Date Filed: 12/05/2012 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-11670 Non-Argument Calendar ________________________ D.C. Docket No. 1:07-cr-20009-JEM-3 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus STEPHANIE JOHNSON, Defendant - Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (December 5, 2012) Before HULL, PRYOR and MARTIN, Circuit Judges. PER CURIAM: Case: 12-11670 Date Filed: 12/05/2012 Page: 2 of 3 Stephanie Johnson appeals her sentence of 120 months of imprisonment, which was imposed after the district court reduced for the second time Johnson s original sentence of 168 months of imprisonment. 18 U.S.C. ยง 3582(c)(2). On Johnson s motion, the district court sentenced her to the statutory minimum sentence in effect when she was first sentenced, but Johnson requested a greater reduction based on the lower minimum sentence under the Fair Sentencing Act of 2010. We affirm. Johnson s argument for a further reduction of her sentence is foreclosed by our recent decision in United States v. Berry, No. 12 11150 (11th Cir. Nov. 14, 2012), that a defendant sentenced before the effective date of the Act is ineligible to have her sentence reduced. We held that the Act is not a guidelines amendment by the Sentencing Commission, but rather a statutory change by Congress, and . . . does not serve as a basis for a . . . sentence reduction under section 3582(c)(2). Id., slip op. at 4. Even if the Act could serve as a basis to reduce a sentence, we held in Berry that the lower mandatory minimum sentences did not apply retroactively to offenders sentenced before the effective date of the Act. Id. at 4 5. As explained by the Supreme Court in Dorsey v. United States, 567 U.S. ____, 132 S. Ct. 2321 (2012), application of the new minimums to preAct offenders sentenced after August 3 create[d] a new set of disparities, that was an inevitable consequence of any new law changing sentences and was 2 Case: 12-11670 Date Filed: 12/05/2012 Page: 3 of 3 consistent with the ordinary practice . . . to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced. Id. at 2335. The district court did not err in denying Johnson s motion to reduce her sentence below the statutory minimum in effect at her original sentencing. We AFFIRM the denial of Johnson s motion to reduce her sentence below the statutory minimum in effect at her original sentencing. AFFIRMED. 3
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