Petition for Writ of Certiorari — Dustin Johnson, Petitioner v. United States

DOCKET NUMBER

ie ae A PN Se Ga eae tes ee SN AT Te OL

IN THE UNITED STATES SUPREME COURT

EET LEE ET ae ETOP PO ee eR A

UNITED STATES OF AMERICA

Plaintiff/Respondent

VS.

DUSTIN JOHNSON

Defendant/Petitioner

On Petition For Writ of Certiorari to the

United States Court of Appeals

For The Sixth Circuit

Docket No. 19-5534 Below

PETITION FOR WRIT OF CERTIORARI

CHRISTIAN LANIER

Attorney for Defendant/Petitioner

Dustin Johnson

2158 Northgate Park Lane, Suite 412

Chattanooga, Tennessee 37415

Telephone (423) 756-1015

Facsimile (423) 756-1208

Lanierlaw@comcast.net

BPR # 4670

QUESTIONS PRESENTED FOR REVIEW

Issue I

Whether the District Court erred in sentencing the Defendant based on

ice (“actual” methamphetamine) rather than a mixture and substance

containing a detectable quantity of methamphetamine, to which the

Defendant had plead guilty?

Issue II

Whether sentencing the Appellant on the “ice” or “methamphetamine

actual” guidelines violates the Due Process clause of the 5" Amendment and

the Equal Protection Clause of the 14" Amendment of the U.S. Constitution?

LIST OF PARTIES

All parties appear in the caption of the case on the cover page. A list of all

parties to the proceeding in the court whose judgment is the subject of this petition

is as follows:

Dustin Johnson, Petitioner

United States of America, Respondent

fi.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .............0 000 cee eee eeeee i

LIST OF PARTIES. wa cannensuxemekesuwawnnesewawyawee dameawinaaunsat il

TABLE OF CONTENTS 0.0.60 creuw scans ewenneuswaawscnseoevase ili

INDEX TO APPENDICES .......... 0.0.0 cc ccc cece teen eens IV

TABLE OF AUTHORITIES ........ 00... ccc ccc cee cen cee een eaes V

OPINION BEDOW vcs. e ces tein cca td ee ce ee ew ee ee ee eee nye aes I

PURISDIC THON os csc ae in cee ee ewe nee ee ee ERNE REEL EA ARS 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....... 2

STATEMENT OF THE CASE .......... 0. ccc cee cee cee cence ee cens 12

PROCEDURAL HISTORY... 0.000. cc ec ce ccc ee ees 12

DLATEMENT OF PACTS 6 occ ce oer e ea yee een rn eee ntepewienauens 15

REASONS FOR GRANTING THE WRIT... 0.2.0... ee cee ee 25

SUMMARY OF REASONS TO GRANT CERTIORARI ................ 25

REASONS TO GRANT CERTIORARI 2.0.00 ccc cece nee 26

Issue [

Whether the District Court erred in sentencing the

Defendant based on ice ("actual" methamphetamine)

rather than a mixture and substance containing a

detectable quantity of methamphetamine, to which the

Defendant had plead guilty? ..........00.000.00.00.0.0.00.0.. 26

-ili-

Issue II

Whether sentencing the Appellant on the "ice" or

"methamphetamine actual" guidelines violates the Due

Process clause of the 5th Amendment and the Equal

Protection Clause of the 14th Amendment of the U.S.

CSEMIOTY cia ase as soe kok he ee nd awe eee ee ee mE 40

CONCLUSION, «caerensens xem wo ena eed kaehwnia ks baw e ew RY S AUR O we 47

INDEX TO APPENDICES

APPENDIX A Sixth Circuit Opinion ................... Appendix Page 1

APPENDIX B USS. District Court Judgment ............ Appendix Page 12

bie

Table of Authorities

CASES

Clark v. United States, No. 1:07-CV-505, 2009 U.S. Dist. LEXIS 124708 (E.D.

Tex. Dec. 23, 2009) 2... ccc ccc cece cere eee eeeneees Pages 35

Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007)

Se ee ee ee eee eee ee ee ee ee Pages 44

United States v. Bean, 2019 DNH 027, 371 F. Supp. 3d 46 (USDC NH, 2019)

Pees She Gera ad otis @ yp ean 2 ae ok pete, Pages 30, 32, 34, 35, 43, 44, 45

United States vs. Bradley, 643 F.3d at 1126-27 ...............005. Page 27, 28

United States v. Brown, 156 F.3d 813 (8th Cir. 1998) ........ 0.000 cae Page 28

United States v. Clark, 199 Fed.Appx. 392 (Sth Cir. 2006).......... Page 35, 36

United States v. Cockerill, No. 99-4634, 2000 U.S. App. LEXIS 15203, 2000 WL

852608 (4th Cir. June 28, 2000)... 0. ec ccc cee eee eee Pages 27, 28

United States v. Conatner, 514 F.3d 508, 520 (6th Cir. 2008) ............. Page

United States vs. Covington, 133 F.3d at 644 ....... 00.0. cece eee Page 27, 28

United States v. Diaz, No. 11-821, 2013 U.S. Dist. LEXIS 11386, 2013 WL

322243 (E.D.N.Y. Jan. 28, 2013)... 0... eee eee oe Page 44

United States v, Ferguson, No. CR 17-204 (JRT/BRT), 2018 U.S. Dist. LEXIS

129802, 2018 WL 3682509 (D. Minn. Aug. 2, 2018)........... Pages 31, 43, 45

United States v. Garcia-Panama, 432 F. App’x 641 (8th Cir. 2011) ..... Page 27

United States v. Guarracino, 750 F. App'x 438 (6th Cir. 2018). ........... Page

United States v. Gully, 619 F. Supp. 2d 633 (N.D. Iowa 2009) .......... Page 34

-V-

United States v. Harry, 313 F. Supp. 3d 969 (N.D. Iowa 2018)

ree eee re ee le Ae Be Pages 31, 33, 34, 37, 44, 45, 46

United States vs. Hartle, 2017 U.S. Dist. LEXIS 93367, 2017 WL 2608221 ......

et ee ee ee ee ee ee er ree Pages 43, 44

United States v. Hayes, 948 F. Supp. 2d 1009 (ND Iowa, 2013) ......... Page 37

United States v. Hoover, No. 4:17-CR-327-BLW, 2018 U.S. Dist. LEXIS 195196,

2018 WL 5924500, at *4 (D. Idaho Nov. 13, 2018) ............ Pages 27, 28, 31

United States v. Houston, 338 F.3d 876 (8th Cir. 2003) .............. Pages 27

United States v. Hyatt, 207 F.3d 1036 (8th Cir. 2000) ................. Page 28

United States v. Ibarra-Sandoval, 265 F. Supp. 3d 1249 (D.N.M. 2017)

ee ne nr ii ee A Pages 32, 45, 46

United States vs. Jennings, 2017 U.S. Dist. LEXIS 93368, 2017 WL 2609038

ee eee ee ee ee ee Pages 45, 46

United States v. Johnson, 379 F. Supp. 3d 1213 (M.D. Ala. 2019)....... Page 43

United States vs. Kimbrough. ...........0.000 600 cee Page 31

United States v. Koonce, 884 F.2d 349 (8th Cir. 1989) ..............5 Page 27

United States v. Long, 532 F.3d 791 (8th Cir. 2008) ................. Page 27

United States v. Maxwell, 25 F.3d 1389 (8th Cir. 1994) ................. Page

United States v. Miller, 161 F.3d 977 (6th Cir. 1998) ................... Page

United States v. Miller, 511 F.3d 821 (8th Cir. 2008) ......... cee cee eee Page

United States v. Moon, 513 F.3d 527 (6th Cir. 2008). ................... Page

vi.

United States v. Moreno, No. 5:19CR002, 2019 U.S. Dist. LEXIS 130450 (W.D.

Wa. Aug, S,20U9). ee ge ee nee ee Pages 37, 44, 46

United States v. Nawanna, 321 F. Supp. 3d 943 (N.D. Iowa 2018).............

er See a es ee ee ea Sle Ee be ee ee eo Pages 31, 32, 45, 46

United States vs. Ortega, 2010 U.S. Dist. LEXIS 48346, 2010 WL 1994870

SN a Be ee ey a Pe ieee Page 45, 46

United States vs. Pereda, 2019 U.S. Dist. LEXIS 19183, 2019 WL 463027 (D.

Colo: Feb G, 2009) acca dn 6 dw be heb nme nem meen Page 44

United States v. Poulsen, 655 F.3d 492 (6th Cir. 2011) ................. Pages

United States v. Rodriguez-Hernandez, 353 F.3d 632 (8th Cir. 2003) ...... Page

United States v. Roman, 121 F.3d 136 (3d Cir. 1997)............0.0... Page 28

United States v. Saldana, No. 1:17-cr-271-1, 2018 U.S. Dist. LEXIS 110790

(W.D. Mich. July 3, 2018) 0.2... cc cc eee Pages 31, 34, 38

SOUT CTETeCeTeTirr TT TITTer eT Tire cerrircrer Tere ee .» Page

United States v. Turner, 603 F.3d 468 (8th Cir. 2010)..................0. Page

United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008) .............. Page

United States v. Walker, 688 F.3d 416 (8th Cir. 2012).............. Page 28, 29

United States v. Walls, 546 F.3d 728, 736 (6th Cir. 2008)................ Page

United States v. Williams, 982 F.2d 1209 (8th Cir. 1992) .............. Page 28

-Vii-

United States v. Zierke, 618 F.3d 755 (8th Cir. 2010) .............. Page 27, 28

CONSTITUTIONAL PROVISIONS

5" Amendment, U.S. Constitution ............00 cece cece ees Pages 2, 25, 40

14" Amendment, U.S. Constitution.............2..cceeee cece Pages 2, 26, 40

STATUTES

18 USC, Seetion S355 ooo cc keene cd wie de we Page 5

21 U.S.C. Section 841(a)(I) ............. 0.00.0 Page 2, 16, 19, 20, 22, 25

21 U.S.C. Section 841(b)(A)(B). .. 0... eee Pages 2, 19, 20, 25

28 U.S.C. Section 1254(1) 2.0... 0... cee eens Page 1,5

28 U.S.C. Section 1291 0.0... ccc cnet ence enes Page

RULES

Rule 4(b) , F.RALP.. ce cence eee n eee eeenaes Page

FEDERAL SENTENCING GUIDELINES

USSG § 2D1.1 ....................8.. Pages 11, 16, 20, 22, 27, 30, 31, 32, 41

USSG § 2DL.1, cmt. n.12. 2... eee eee raw ee ere ees eM wim mea me Page 28

USSG §3BL8. . 0. 0.2. ne eae eee eee reesenesreneges Page 39

USSG §3EL.1 2.0000. 00 cc eee eee ee ee eees Pages 16, 20, 22

-Vili-

USSG § 4AL.1(d) .0.. 0. cece cece ccceeceeee eee eeeeeevennees ... Page 19

PUBLICATIONS

2018 National Drug Threat Assessment, DEA....................... Pages 38, 39, 41, 42

~ix-

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

etitioner respectfully prays that a Writ of Certiorari issue to review the

Pp Order of the United States Court of Appeals for the Sixth Circuit

denying the Petitioner’s appeal.

OPINION BELOW

An Opinion denying the Petitioner’s appeal as was entered by the United

States Court of Appeals for the Sixth Circuit was on May 7, 2020, and appears at

Appendix A to the Petition. A Mandate was issued on May 29, 2020. The

Judgment of the United States District Court for the Eastern District of Tennessee

appears at Appendix B to the Petition.

JURISDICTION

The Decision of the United States Court of Appeals for the Sixth Circuit

was filed on May 7, 2020. No petition for rehearing was filed in this case.

Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1).

Page -1-

CONSTITUTIONAL, STATUTORY,

AND SENTENCING GUIDELINE

PROVISIONS INVOLVED

Amendment 5 —U.S. Constitution

No person shall be held to answer for a capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use, without just compensation.

Amendment 14 —U.S. Constitution

Sec. 1. [Citizens of the United States.] All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal protection

of the laws.

21 U.S.C. Section 841

21 USCS § 841. Prohibited Acts A

(a) Unlawful acts. Except as authorized by this title, it shall be unlawful for any

person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute

or dispense, a counterfeit substance.

(b) Penalties. Except as otherwise provided in section 409, 418, 419, or 420 [21

Page -2-

USCS § 849, 859, 860, or 861], any person who violates subsection (a) of this

section shall be sentenced as follows:

(1)

(A) In the case of a violation of subsection (a) of this section

involving—

* Kk

(viii) 50 grams or more of methamphetamine, its salts,

isomers, and salts of its isomers or 500 grams or more of

a mixture or substance containing a detectable amount of

methamphetamine, its salts, isomers, or salts of its

isomers;

such person shall be sentenced to a term of imprisonment which may

not be less than 10 years or more than life and if death or serious

bodily injury results from the use of such substance shall be not less

than 20 years or more than life, a fine not to exceed the greater of that

authorized in accordance with the provisions of title 18, United States

Code, or $10,000,000 if the defendant is an individual or $50,000,000

if the defendant is other than an individual, or both. If any person

commits such a violation after a prior conviction for a serious drug

felony or serious violent felony has become final, such person shall be

sentenced to a term of imprisonment of not less than 15 years and not

more than life imprisonment and if death or serious bodily injury

results from the use of such substance shall be sentenced to life

imprisonment, a fine not to exceed the greater of twice that authorized

in accordance with the provisions of title 18, United States Code, or

$20,000,000 if the defendant is an individual or $75,000,000 if the

defendant is other than an individual, or both. If any person commits a

violation of this subparagraph or of section 409, 418, 419, or 420 [21

USCS § 849, 859, 860, or 861] after 2 or more prior convictions for a

serious drug felony or serious violent felony have become final, such

person shall be sentenced to a term of imprisonment of not less than

25 years and fined in accordance with the preceding sentence.

Notwithstanding section 3583 of title 18, any sentence under this

subparagraph shall, in the absence of such a prior conviction, impose a

term of supervised release of at least 5 years in addition to such term

of imprisonment and shall, if there was such a prior conviction,

Page -3-

impose a term of supervised release of at least 10 years in addition to

such term of imprisonment. Notwithstanding any other provision of

law, the court shall not place on probation or suspend the sentence of

any person sentenced under this subparagraph. No person sentenced

under this subparagraph shall be eligible for parole during the term of

imprisonment imposed therein.

(B) In the case of a violation of subsection (a) of this section

involving—

* ok OK

(viii) 5 grams or more of methamphetamine, its salts,

isomers, and salts of its isomers or 50 grams or more of a

mixture or substance containing a detectable amount of

methamphetamine, its salts, isomers, or salts of its

isomers;

such person shall be sentenced to a term of imprisonment which may

not be less than 5 years and not more than 40 years and if death or

serious bodily injury results from the use of such substance shall be

not less than 20 years or more than life, a fine not to exceed the greater

of that authorized in accordance with the provisions of title 18, United

States Code, or $5,000,000 if the defendant is an individual or

$25,000,000 if the defendant is other than an individual, or both. If

any person commits such a violation after a prior conviction for a

serious drug felony or serious violent felony has become final, such

person shall be sentenced to a term of imprisonment which may not be

less than 10 years and not more than life imprisonment and if death or

serious bodily injury results from the use of such substance shall be

sentenced to life imprisonment, a fine not to exceed the greater of

twice that authorized in accordance with the provisions of title 18,

United States Code, or $8,000,000 if the defendant is an individual or

$50,000,000 if the defendant is other than an individual, or both.

Notwithstanding section 3583 of title 18, any sentence imposed under

this subparagraph shall, in the absence of such a prior conviction,

include a term of supervised release of at least 4 years in addition to

such term of imprisonment and shall, if there was such a prior

conviction, include a term of supervised release of at least 8 years in

addition to such term of imprisonment. Notwithstanding any other

provision of law, the court shall not place on probation or suspend the

sentence of any person sentenced under this subparagraph. No person

Page -4-

sentenced under this subparagraph shall be eligible for parole during

the term of imprisonment imposed therein.

injury results from the use of such substance shall be sentenced to life

imprisonment, a fine not to exceed the greater of twice that authorized

in accordance with the provisions of title 18, United States Code, or

$2,000,000 if the defendant is an individual or $10,000,000 if the

defendant is other than an individual, or both. Notwithstanding section

3583 of title 18, any sentence imposing a term of imprisonment under

this paragraph shall, in the absence of such a prior conviction, impose

a term of supervised release of at least 3 years in addition to such term

of imprisonment and shall, if there was such a prior conviction,

impose a term of supervised release of at least 6 years in addition to

such term of imprisonment. Notwithstanding any other provision of

law, the court shall not place on probation or suspend the sentence of

any person sentenced under the provisions of this subparagraph which

provide for a mandatory term of imprisonment if death or serious

bodily injury results, nor shall a person so sentenced be eligible for

parole during the term of such a sentence.

28 U.S.C. § 1254(1)

Courts of appeals; certiorari; certified questions

Cases in the courts of appeals may be reviewed by the Supreme Court by the

following methods:(1) By writ of certiorari granted upon the petition of any party

to any civil or criminal case, before or after rendition of judgment or decree;

(2) By certification at any time by a court of appeals of any question of law in any

civil or criminal case as to which instructions are desired, and upon such

certification the Supreme Court may give binding instructions or require the entire

record to be sent up for decision of the entire matter in controversy.

18 U.S.C.A. § 3553

(a) Factors to be considered in imposing a sentence.--The court shall impose a

Page -5-

sentence sufficient, but not greater than necessary, to comply with the purposes set

forth in paragraph (2) of this subsection. The court, in determining the particular

sentence to be imposed, shall consider--

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the

defendant; and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for--

(A) the applicable category of offense committed by the

applicable category of defendant as set forth in the

guidelines--

(i) issued by the Sentencing Commission pursuant to

section 994(a)(1) of title 28, United States Code, subject to

any amendments made to such guidelines by act of

Congress (regardless of whether such amendments have

yet to be incorporated by the Sentencing Commission into

amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in

effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised

release, the applicable guidelines or policy statements

issued by the Sentencing Commission pursuant to section

994(a)(3) of title 28, United States Code, taking into

account any amendments made to such guidelines or

policy statements by act of Congress (regardless of

whether such amendments have yet to be incorporated by

the Sentencing Commission into amendments issued under

section 994(p) of title 28);

(5) any pertinent policy statement--

Page -6-

(A) issued by the Sentencing Commission pursuant to

section 994(a)(2) of title 28, United States Code, subject to

any amendments made to such policy statement by act of

Congress (regardless of whether such amendments have

yet to be incorporated by the Sentencing Commission into

amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect

on the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar

conduct; and

(7) the need to provide restitution to any victims of the offense.

(b) Application of guidelines in imposing a sentence.--

(1) In general.--Except as provided in paragraph (2), the court shall

impose a sentence of the kind, and within the range, referred to in

subsection (a)(4) unless the court finds that there exists an aggravating

or mitigating circumstance of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission in formulating

the guidelines that should result in a sentence different from that

described. In determining whether a circumstance was adequately taken

into consideration, the court shall consider only the sentencing

guidelines, policy statements, and official commentary of the

Sentencing Commission. In the absence of an applicable sentencing

guideline, the court shall impose an appropriate sentence, having due

regard for the purposes set forth in subsection (a)(2). In the absence of

an applicable sentencing guideline in the case of an offense other than

a petty offense, the court shall also have due regard for the relationship

of the sentence imposed to sentences prescribed by guidelines

applicable to similar offenses and offenders, and to the applicable

policy statements of the Sentencing Commission.

(2) Child crimes and sexual offenses.--

(A) Sentencing.--In sentencing a defendant convicted of

an offense under section 1201 involving a minor victim,

an offense under section 1591, or an offense under chapter

71, 109A, 110, or 117, the court shall impose a sentence of

the kind, and within the range, referred to in subsection

(a)(4) unless--

Page -7-

(i) the court finds that there exists an aggravating

circumstance of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission in

formulating the guidelines that should result in a sentence

greater than that described;

(ii) the court finds that there exists a mitigating

circumstance of a kind or to a degree, that--

(1) has been affirmatively and specifically

identified as a permissible ground of

downward departure in the sentencing

guidelines or policy statements issued under

section 994(a) of title 28, taking account of

any amendments to such sentencing

guidelines or policy statements by Congress;

(II) has not been taken into consideration by

the Sentencing Commission in formulating

the guidelines; and

(IIT) should result in a sentence different from

that described; or

(iii) the court finds, on motion of the Government, that the

defendant has provided substantial assistance in the

investigation or prosecution of another person who has

committed an offense and that this assistance established a

mitigating circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should

result in a sentence lower than that described.

In determining whether a circumstance was adequately

taken into consideration, the court shall consider only the

sentencing guidelines, policy statements, and official

commentary of the Sentencing Commission, together with

any amendments thereto by act of Congress. In the

absence of an applicable sentencing guideline, the court

shall impose an appropriate sentence, having due regard

for the purposes set forth in subsection (a)(2). In the

absence of an applicable sentencing guideline in the case

of an offense other than a petty offense, the court shall

also have due regard for the relationship of the sentence

Page -8-

imposed to sentences prescribed by guidelines applicable

to similar offenses and offenders, and to the applicable

policy statements of the Sentencing Commission, together

with any amendments to such guidelines or policy

statements by act of Congress.

(c) Statement of reasons for imposing a sentence.--The court, at the time of

sentencing, shall state in open court the reasons for its imposition of the particular

sentence, and, if the sentence--

(1) is of the kind, and within the range, described in subsection (a)(4)

and that range exceeds 24 months, the reason for imposing a sentence

at a particular point within the range; or

(2) is not of the kind, or is outside the range, described in subsection

(a)(4), the specific reason for the imposition of a sentence different

from that described, which reasons must also be stated with specificity

in a statement of reasons form issued under section 994(w)(1)(B) of

title 28, except to the extent that the court relies upon statements

received in camera in accordance with Federal Rule of Criminal

Procedure 32. In the event that the court relies upon statements

received in camera in accordance with Federal Rule of Criminal

Procedure 32 the court shall state that such statements were so received

and that it relied upon the content of such statements.

If the court does not order restitution, or orders only partial restitution,

the court shall include in the statement the reason therefor: The court

shall provide a transcription or other appropriate public record of the

court's statement of reasons, together with the order of judgment and

commitment, to the Probation System and to the Sentencing

Commission, * and, if the sentence includes a term of imprisonment, to

the Bureau of Prisons.

(d) Presentence procedure for an order of notice.--Prior to imposing an order of

notice pursuant to section 3555, the court shall give notice to the defendant and the

Government that it is considering imposing such an order. Upon motion of the

defendant or the Government, or on its own motion, the court shall--

(1) permit the defendant and the Government to submit affidavits and

written memoranda addressing matters relevant to the imposition of

such an order;

(2) afford counsel an opportunity in open court to address orally the

Page -9-

appropriateness of the imposition of such an order; and

(3) include in its statement of reasons pursuant to subsection (c)

specific reasons underlying its determinations regarding the nature of

such an order.

Upon motion of the defendant or the Government, or on its own

motion, the court may in its discretion employ any additional

procedures that it concludes will not unduly complicate or prolong the

sentencing process.

(e) Limited authority to impose a sentence below a statutory minimum.--Upon

motion of the Government, the court shall have the authority to impose a sentence

below a level established by statute as a minimum sentence so as to reflect a

defendant's substantial assistance in the investigation or prosecution of another

person who has committed an offense. Such sentence shall be imposed in

accordance with the guidelines and policy statements issued by the Sentencing

Commission pursuant to section 994 of title 28, United States Code.

(f) Limitation on applicability of statutory minimums in certain

cases.--Notwithstanding any other provision of law, in the case of an offense under

section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846)

or section 1010 or 1013 of the Controlled Substances Import and Export Act (21

U.S.C. 960, 963), the court shall impose a sentence pursuant to guidelines

promulgated by the United States Sentencing Commission under section 994 of title

28 without regard to any statutory minimum sentence, if the court finds at

sentencing, after the Government has been afforded the opportunity to make a

recommendation, that--

(1) the defendant does not have more than 1 criminal history point, as

determined under the sentencing guidelines;

(2) the defendant did not use violence or credible threats of violence or

possess a firearm or other dangerous weapon (or induce another

participant to do so) in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any

person;

(4) the defendant was not an organizer, leader, manager, or supervisor

of others in the offense, as determined under the sentencing guidelines

and was not engaged in a continuing criminal enterprise, as defined in

section 408 of the Controlled Substances Act; and

(5) not later than the time of the sentencing hearing, the defendant has

Page -10-

truthfully provided to the Government all information and evidence the

defendant has concerning the offense or offenses that were part of the

same course of conduct or of a common scheme or plan, but the fact

that the defendant has no relevant or useful other information to

provide or that the Government is already aware of the information

shall not preclude a determination by the court that the defendant has

complied with this requirement.

USSG §2D1.1

§2D1.1. Unlawful Manufacturing, Importing, Exporting, or Trafficking

(Including Possession with Intent to Commit These Offenses); Attempt or

Conspiracy

a) Base Offense Level (Apply the greatest):

* ok

(5)

ke

e At least 500 G but less than 1.5 KG of Methamphetamine, or

at least 50 G but less than 150 G of Methamphetamine (actual), or

at least 50 G but less than 150 G of "Ice";

Level 30

(8)

k*E*

¢ At least 50 G but less than 200 G of Methamphetamine, or

at least 5 G but less than 20 G of Methamphetamine (actual), or

at least 5 G but less than 20 G of "Ice";

Level 24

Page -11-

STATEMENT OF THE CASE

PROCEDURAL HISTORY OF CASE

The Defendant-Appellant, Dustin Johnson, was indicted in Counts 1 and 13

of the Superseding Indictment of Docket Number 1:17-CR-140. He was charged

with participating in a conspiracy to distribute or possess to distribute 50 grams or

more of actual methamphetamine and 500 grams or more of a mixture and substance

containing a detectable quantity of methamphetamine (Count 1) and

possession with intent to distribute 50 grams or more of a mixture and substance

containing methamphetamine on December 7, 2017 (Count 13). (R. 77, Superseding

Indictment, ID Pages ## 193-200). His girlfriend, Amanda Hampton, was also

indicted in the conspiracy and on Court 13. They both ultimately plead guilty to

Count 13. (R. 142, Plea Agreement of Amanda Hampton, Page ID ## 322-330; R.

158, Plea Agreement of Dustin Johnson, Page ID ## 600-609; R. 191, Revised Plea

Agreement of Dustin Johnson, Page ID ## 831-838).

The Appellant was arraigned and ordered to be detained on April 18, 2018.

(R. 87, Memorandum and Order, Page ID ## 219; R. 88, Order of Detention, Page

ID ## 220; R. 89, Minute Entry, Page ID ## 221). The Appellant’s Plea Agreement

was filed in error as to all defendants in the case on August 28, 2018. (R. 158, Plea

Agreement, Page ID ## 600-609). A Revised Plea Agreement was filed on October

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12, 2018. (R. 191, Plea Agreement Revised, Page ID ## 831-838).

The Appellant entered a plea of “guilty” per the Revised Plea Agreement on

November 7, 2018. (R. 215, Minute Entry, Page ID ## 1150; R. 376, Transcript for

Hearing of November 7, 2018, Page ID ## 3810-3830; R. 374, Transcript, Re-

Arraignment Hearing, Page ID. ## 3799-3808).

The Appellant’s Sentencing Hearing was set for March 27, 2019. (R. 248,

Notice of Hearing, Page ID ## 2068).

The Pre-Sentence Report was filed February 20, 2019. (R. 267, Pre-Sentence

Report, Page ID ## 2069-2087). The Government filed a Notice of No Objections

on March 5, 2019. (R. 279, Notice of No Objections, Page ID ## 2298-2299), The

Appellant filed a Notice of Objections to the Pre-Sentence Report on March 5,

2019. (R. 280, Notice of Objections, Page ID ## 2300-2305).

The Appellant filed a Motion To Continue Sentencing Hearing on March 19,

2019. (R. 290, Motion To Continue Sentencing Hearing, Page ID ## 2329-2330).

The Appellant also filed a Notice of Filing of Letters of Support on March 19, 2019.

(R. 291, Notice of Filing of Letters of Support, Page ID ## 2331-2336).

An Addendum to the PSR was filed on March 20, 2019. (R. 293, Addendum

to PSR, Page ID ## 2340-2347). Additionally a Revised Pre-Sentence Report was

filed on March 20, 2019. (R. 294, Revised Pre-Sentence Report, Page ID ## 2348-

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2366).

On March 20, 2019, the Court granted the Appellant’s Motion To Continue.

(R. 295, Order, Page ID ## 2367). On March 25, 2019, the Appellant filed a

Motion For Downward Departure And/Or To Grant Credit Toward Sentence. (R.

298, Motion For Downward Departure And/Or To Grant Credit Toward Sentence,

Page ID ## 2387-2414). A Second Addendum to the PSR and Second Revised Pre-

Sentence Report were filed on May 1, 2019. (R. 331, Second Addendum, Page ID

## 2795 ; R. 332, Second Revised Pre-Sentence Report, Page ID ## 2796-2814).

The Appellant filed a Submission of Courses Attended at Silverdale Workhouse on

May 6, 2019. (R. 339, Supplement Submission of Courses Attended At Silverdale

Workhouse, Page ID ## 274-2876).

The Government filed a Response to the Motion For Downward Departure

filed by the Appellant on March 25, 2019, (R. 344, Response To Motion, Page ID

## 2886-2887). Additional documents were submitted on behalf of the Appellant

on May 6, 2019. (R. 346, Supplement Submission of Additional Documents, Page

ID ## 2893-2899). On May 7, 2019, the Appellant filed a Motion For Variance of

Sentence, a Notice of Objections To Pre-Sentence Report, and Sentencing

Memorandum. (R. 347, Motion For Variance of Sentence, Page ID ## 2900-2902;

R. 348, Notice of Objections To Pre-Sentence Report, Page ID ## 2903-2906; R.

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349, Sentencing Memorandum, Page ID ## 2907-3133).

On May 8, 2019, the Court sentenced the Appellant to 108 months. (R. 351,

Minutes, Page ID ## 3135; R. 377, Transcript, Sentencing Hearing, Page ID ##

3831-3892). The Judgment was entered on May 14, 2019. (R. 359, Judgment, Page

ID ## 3161-3167). A Notice of Appeal was filed by the Appellant on May 17,

2019. (R. 364, Notice of Appeal, Page ID #4 3184-3185).

The Sixth Circuit Court of Appeals issued its Decision denying the

Appeallant’s requested relief on May 7, 2020. Its Mandate was issued on May 29,

2020.

STATEMENT OF FACTS

The Defendant-Appellant, Dustin Johnson, was indicted in Counts 1 and 13

of the Superseding Indictment of Docket Number 1:17-CR-140. He was charged

with participating in a conspiracy to distribute or possess to distribute 50 grams or

more of actual methamphetamine and 500 grams or more of a mixture and substance

containing a detectable quantity of methamphetamine (Count 1) and

possession with intent to distribute 50 grams or more of a mixture and substance

containing methamphetamine on December 7, 2017 (Count 13). (R. 77, Superseding

Indictment, ID Pages ## 193-200).

The Appellant entered a plea of “guilty” per the Revised Plea Agreement on

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November 7, 2018. (R. 215, Minute Entry, Page ID ## 1150; R. 376, Transcript for

Hearing of November 7, 2018, Page ID ## 3810-3830).

The Appellant’s Sentencing Hearing was set for March 27, 2019. (R. 248,

Notice of Hearing, Page ID ## 1951).

The Pre-Sentence Report was filed February 20, 2019. (R. 267, Pre-Sentence

Report, Page ID ## 2069-2087). The PSR issued on February 20, 2019, calculated

the Offense Level as follows:

22. Base Offense Level: The guideline for a violation of 21 U.S.C. §

841(a)(1) is USSG §2D1.1. The base offense level is 30 for at least 500

grams but less than 1.5 kilograms of methamphetamine. USSG

§2D1.1(a)(5). 30

23. Specific Offense Characteristics: Pursuant to USSG §2D1.1(b), if

a weapon is possessed, increase by two-levels. In this case, weapons

were possessed in the motel room where the drugs were located. +2

24. Victim Related Adjustment: None. 0

25. Adjustment for Role in the Offense: None. 0

26. Adjustment for Obstruction of Justice: None. 0

27. Adjusted Offense Level (Subtotal): 32

28. Chapter Four Enhancement: None. 0

29. Acceptance of Responsibility: The defendant has clearly

demonstrated acceptance of responsibility for the offense. Accordingly,

the offense level is decreased by two

levels. USSG §3E1.1(a). -2

30. Acceptance of Responsibility: The defendant has assisted

authorities in the investigation or prosecution of the defendant's own

misconduct by timely notifying authorities of the intention to enter a

plea of guilty. Accordingly, the offense level is decreased by one

additional level. USSG §3E1.1(b). -1

31. Total Offense Level: 29

(R. 267, Pre-Sentence Report, Page ID ## 2073-2074).

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With a Criminal History Category of III, the resulting Guideline Range of 108

to 135 months. (R. 267, Pre-Sentence Report, Page ID # 2081).

The Government filed a Notice of No Objections on March 5, 2019. (R. 279

o

Notice of No Objections, Page ID ## 2298-2299).

The Appellant filed a Notice of Objections to the Pre-Sentence Report on

March 5, 2019. (R. 280, Notice of Objections, Page ID ## 2300-2305). In particular

he cited

“1. Objection To Conversion of Money.

The Defendant objects to Paragraph 17 in which there is a

conversion of the $43,687.00 ($3,247.00 found in Defendant’s wallet

and the remaining $40,440.00 found in a yellow bag in the motel room

occupied by the Defendant and Amanda Hampton) to 436.87 grams of

methamphetamine. As a preliminary matter, methamphetamine was not

the only drug found in the room. Marijuana and an assortment of pills

were found. (PSR Paragraphs 14 and 15). If there were to be a

conversion at all, it should be to marijuana, if not the pills. The clear

amount of methamphetamine attributable to both Mr. Johnson and his

co-defendant, Amanda Hampton, is the 85 grams found in their joint

motel room.

In Paragraph 4 of his Revised Plea Agreement it states, “The codefendant [Ms. Hampton] provided consent to search the room and

approximately 80 grams of a mixture and substance containing a

detectable quantity of methamphetamine was located. ****Inside the

bathroom, in addition to the methamphetamine, agents found ...more

than $40,000 in cash.”

There being no admission, confession or other evidence to

support the allegation that the money was the proceeds of

methamphetamine sales, the money should not be converted to drugs.

Thus, 85 grams of Methamphetamine would be Base Offense Level 24.

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Adding 2 Levels for the firearms raises the Offense Level to 26. With

3 Levels off for Acceptance of Responsibility, that results in Level 23.

Should the Court find that the money should be converted to

drugs, there having been marijuana in Defendant’s possession, all the

money and drugs should be converted to marijuana, in which case he

would start at Offense Level 24. Adding 2 Levels for the firearms

raises the Offense Level to 26. With 3 Levels off for Acceptance of

Responsibility, that results in the very same Level 23.

The marijuana calculations would be as follows:

Amount of Amount of Amount of

Money Marijuana at Marijuana at

$500.00/ LB $700.00/Ib

Money $43,670.00 28.37 KG 39.71 KG

85 Grams of 170.00 KG 170.00 KG

Meth

TOTALS 198.37 KG 209.71 KG

Offense Level Level 24 Level 24

2. Objection To Criminal History Calculation.

The Defendant objects to the determination to add two Criminal

History Points on the grounds the Defendant “committed the instant

offense while under a criminal justice sentence for the sentence

imposed on December 9, 2016.”

The date of the instant offense was December 8, 2017. (PSR

Paragraph 10). The cases in which a sentence was imposed on

December 9, 2016 (PSR Paragraph 36) notes that the Defendant plead

to sentences of 11 months, 29 days with slight other variations of how

long he was to be actually incarcerated. With respect to the 3" charge,

Aggravated Criminal Trespassing, a Probation Violation warrant was

executed on 10/27/2017. A hearing was scheduled on 6/13/2018 with

no further disposition being noted. Technically speaking although he

was served with a warrant for an alleged violation on 10/27/2017, there

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was no hearing prior to the expiration of the 11 months 29 days term of

the sentence such that probation expired at the end of the 11 months, 29

days. Moreover, despite a hearing being scheduled on 6/13/2018,

nothing ever came of it which implies no Judgment extending the

original 11 months, 29 days was ever entered. In either instance, I

months, 29 days would be 2 days short of a year such that the

Defendant’s sentences and probation expired on December 7, 2017,

one day before the instant offense.

Therefore, the two additional Criminal History Points under

USSG Section 4A1.1(d) should not be added. The Defendant would

thus have Four (4) Criminal History Points and be in Criminal History

Category II.

4 Guideline Range Calculations.

The Defendant respectfully submits that the Guideline Range

should be calculated as follows:

PSR Paragraph Description Levels Levels

Number

ae Base Offense 23 24

Level

23 Specific Offense 2 2

Characteristics

(Guns Present)

30 Acceptance of -3 -3

Responsibility

31 Total Offense py 23

Level

38 Criminal History 4 A

Points

Criminal History I II

Range

65 Guideline Range 46-57 Months 51-63 Months

64 Effective Range 60 Months 60-63 Months

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Insofar as the minimum mandatory for an offense under 21

U.S.C. Section 841(b)(1)(B) is 5 years, the Defendant’s Effective

Range is either 60 Months or 60 to 63 Months.”

In light of these objections, a Revised Pre-Sentence Report was issued on

March 20, 2019, which calculated the Offense Level as follows:

22. Base Offense Level: The guideline for a violation of 21 U.S.C. 841 is USSG

23.

24.

25.

26.

27.

28.

29,

a0,

§2D1.1. The base offense level is 24 for at least 50 grams but less than

200 grams of methamphetamine. USSG §2P1.1(@)5) and (c)(8). .... 24

Specific Offense Characteristics: Pursuant to USSG §2D1. 1 (b)(1),

if a weapon is possessed, increase by two-levels. In this case,

weapons were possessed in the

motel room where the drugs were located. +2

Victim Related Adjustment: None.

Adjustment for Role in the Offense: None.

Adjustment for Obstruction of Justice: None.

Adjusted Offense Level (Subtotal): 26

Chapter Four Enhancement: None. a

Acceptance of Responsibility: The defendant has clearly

demonstrated acceptance ofresponsibility for the offense.

Accordingly, the offense level is decreased by two

levels. USSG §3E1.1(a). “2

Acceptance of Responsibility: The defendant has assisted

authorities in the investigation or prosecution of the defendant's

own misconduct by timely notifying authorities of the intention to

enter a plea of guilty. Accordingly, the offense level

is decreased by one additional level. USSG §EI.1 (b). ~1

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