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

Supreme Court briefNov 25, 2025

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NO. _________

IN THE SUPREME COURT OF THE UNITED STATES

RICHARD JOHNSON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent

__________________________________________

PETITION FOR A WRIT OF CERTIORARI

APPENDIX

__________________________________________

INDEX TO APPENDIX

United States v. Johnson, No. 24-2393, 2025 WL 1949738 (8th Cir. July 16, 2025) 1a

Order Denying Petition for Rehearing and Rehearing En Banc ............................... 3a

Order Denying Motion for Sentence Reduction, United States v. Johnson, No. 6:10-

cr-60032-SOH (W. D. Ark. July 2, 2024), ECF No. 215 ............................................. 4a

United States v. Johnson, Not Reported in Fed. Rptr. (2025)

2025 WL 1949738

Only the Westlaw citation is currently available.

United States Court of Appeals, Eighth Circuit.

UNITED STATES of America, Plaintiff - Appellee

Richard JOHNSON, Defendant - Appellant

No. 24-2393

Submitted: April 14, 2025

Filed: July 16, 2025

Appeal from United States District Court for the Western

District of Arkansas - Hot Springs

Attorneys and Law Firms

Kevin Charles Eaton, David A. Harris, Candace L. Taylor

Assistant U.S. Attorneys, U.S. Attorney's Office, Fort Smith,

AR, for Plaintiff - Appellee.

Richard Johnson, Forrest City, AR, Pro Se.

Anna Marie Williams, Assistant Federal Public Defender,

Federal Public Defender's Office, Fayetteville, AR, for

Defendant - Appellant.

Before ERICKSON, ARNOLD, and STRAS, Circuit Judges.

[Unpublished]

PER CURIAM.

*1 Richard Johnson appeals the district court's 1 denial

of his motions for a sentence reduction under 18 U.S.C. §

3582(c)(1)(A). He contends the disparity between the 32year sentence he received in 2012 and the sentence he would

receive today under the First Step Act of 2018 (“FSA”)

constitutes an “extraordinary and compelling” reason for

relief. We affirm.

In 2010, a grand jury indicted Johnson on four counts

of an eight-count indictment. Count Five charged robbery

involving controlled substances, in violation of 18 U.S.C.

§§ 2118(a) and (c)(1), and aiding and abetting under § 2.

Count Six charged him with using, carrying, and possessing

a firearm in furtherance of the robbery charged in Count

Five, in violation of § 924(c)(1)(A) and § 2. Count Seven

charged possession with intent to distribute hydrocodone, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count

Eight charged the use, carrying, and possession of a firearm

in furtherance of the drug trafficking offense in Count Seven,

also under § 924(c)(1)(A) and § 2.

In 2011, Johnson pled guilty to the two § 924(c) firearm

offenses charged in Counts Six and Eight. At the time, §

924(c) required a 7-year mandatory minimum sentence for a

first offense involving brandishing a firearm, and a 25-year

minimum sentence for a second conviction—even when both

convictions arose from the same proceeding. See 18 U.S.C.

§§ 924(c)(1)(A)(ii), 924(c)(1)(C)(i) (2012). The district court

sentenced Johnson to consecutive terms of 7 and 25 years for

the two convictions, totaling a “stacked” sentence of 32 years.

In 2018, Congress amended § 924(c) to eliminate this form

of sentence “stacking.” See First Step Act of 2018, Pub. L.

No. 115-391, § 403, 132 Stat. 5194, 5221–22. Under the

amended statute, the 25-year penalty in § 924(c)(1)(C) applies

only when a prior § 924(c) conviction has become final.

Id. Congress limited retroactivity to defendants for whom “a

sentence for the offense has not been imposed as of such date

of enactment.” Id. § 403(b). Because Johnson was sentenced

in 2012, the amendment did not apply retroactively to his

case. If he were sentenced today, however, the two § 924(c)

convictions would not trigger the 25-year penalty, and the

applicable mandatory minimum would be 7-year terms for

each conviction, or 14 years total.

In 2020 and 2021, Johnson filed two motions to reduce

his sentence under 18 U.S.C. § 3582(c)(1)(A), contending

the 18-year disparity between his actual sentence and the

sentence he would receive under current law constituted

an “extraordinary and compelling” reason warranting relief.

In 2024, the district court concluded that our decision in

United States v. Crandall, 25 F.4th 582, 586 (8th Cir. 2022),

foreclosed relief and declined to reduce Johnson's sentence

under U.S.S.G. § 1B1.13(b)(6). Johnson timely appealed.

We review de novo a defendant's eligibility to seek a sentence

reduction under the FSA. United States v. Sisco, 41 F.4th

1032, 1035 (8th Cir. 2022). If the defendant is eligible,

we review the district court's decision to deny relief for

an abuse of discretion. Id. A district court may reduce

a sentence under § 3582(c)(1)(A) if three conditions are

met: (1) “extraordinary and compelling reasons” justify the

reduction; (2) the reduction is consistent with applicable

1a 1

United States v. Johnson, Not Reported in Fed. Rptr. (2025)

policy statements issued by the Sentencing Commission; and

(3) the sentencing factors under § 3553(a) support relief.

See § 3582(c)(1)(A); United States v. Avalos Banderas,

39 F.4th 1059, 1061 (8th Cir. 2022). Congress authorized

the Sentencing Commission to define “extraordinary and

compelling” reasons in 28 U.S.C. § 994(t), subject to the

limitation that rehabilitation alone is not sufficient.

*2 The applicable policy statements are found in U.S.S.G.

§ 1B1.13. In 2023, the Sentencing Commission amended

§ 1B1.13 to include subsection (b)(6), which permits

courts to consider certain nonretroactive changes in law as

an “extraordinary and compelling reason” for a sentence

reduction. Relief under this provision is limited to defendants

who (1) are serving an unusually long sentence, (2) have

served at least ten years, (3) show that the change in law

has created a gross sentencing disparity, and (4) present

individualized circumstances justifying a reduction. U.S.S.G.

§ 1B1.13(b)(6). The Guidelines also clarify that, outside

subsection (b)(6), changes in law may not be considered in

determining whether “extraordinary and compelling” reasons

exist. U.S.S.G. § 1B1.13(c).

Nonetheless, our precedent holds that a nonretroactive

change in sentencing law cannot, independently or in

combination with other factors, constitute an “extraordinary

and compelling reason” under § 3582(c)(1)(A). Crandall,

25 F.4th at 586; United States v. Rodriguez-Mendez, 65

F.4th 1000, 1004 (8th Cir. 2023) (considering proposed

amendments to § 1B1.13, including subsections (b)(6) and

(c), and reaffirming Crandall as binding precedent). In

Crandall, we rejected a similar claim for relief based on the

FSA's amendment to § 924(c). 25 F.4th at 583. We explained

that congressional changes to sentencing laws, while

consequential, “may not be ‘extraordinary’ as an empirical

matter.” Id. at 586. Moreover, a defendant's insufficient

individualized factors—such as age, health, and rehabilitation

—do not become “extraordinary and compelling” because

they are paired with an impermissible legal ground. Id.

Johnson argues that § 1B1.13(b)(6) supersedes Crandall by

expanding the definition of “extraordinary and compelling,”

but that argument is foreclosed by Loper Bright Enterprises

v. Raimondo, 603 U.S. 369 (2024). There, the Supreme

Court overruled Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), and held that

courts may not defer to agency interpretations of ambiguous

statutes merely because the statute is ambiguous. Id. at 412. It

further described such deference as the “antithesis” of judicial

review, particularly when it “forces courts to [defer] even

when a pre-existing judicial precedent holds that the statute

means something else.” Id. at 399 (citation modified).

Although Loper Bright involved the Administrative

Procedure Act, it reinforces the principle that courts have

the final authority to interpret statutes. Id. at 373. As the

Third Circuit recently observed in the sentencing context,

“Loper Bright is still instructive as we assess the assertion that

the Commission's view of a statute should trump our own.”

United States v. Rutherford, 120 F.4th 360, 379 (3d Cir. 2024),

cert. granted, No. 24-820, 2025 WL 1603603 (U.S. June 6,

2025). That principle controls here. While § 994(t) authorizes

the Sentencing Commission to identify permissible grounds

for relief, it cannot displace our interpretation of the statutory

limits of § 3582(c)(1)(A). Crandall remains binding law

in this circuit, and the nonretroactive change in law on

which Johnson relies does not constitute an “extraordinary

and compelling” reason under the statute. Because Johnson

presents no other legally sufficient basis for relief, the district

court did not abuse its discretion in denying his motions.

We affirm the judgment of the district court.

All Citations

Not Reported in Fed. Rptr., 2025 WL 1949738

Footnotes

The Honorable Susan O. Hickey, Chief Judge, United States District Court for the Western District of

Arkansas.

2a 2

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 24-2393

United States of America

Appellee

Richard Johnson

Appellant

______________________________________________________________________________

Appeal from U.S. District Court for the Western District of Arkansas - Hot Springs

(6:10-cr-60032-SOH-2)

______________________________________________________________________________

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is

also denied.

Judge Shepherd did not participate in the consideration or decision of this matter.

September 02, 2025

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________

/s/ Susan E. Bindler

Appellate Case: 24-2393

Page: 1

Date Filed: 09/02/2025 Entry ID: 5553270

Case 6:10-cr-60032-SOH Document 215

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IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

UNITED STATES OF AMERICA

PLAINTIFF

Case No. 6:10-cr-60032-002

RICHARD JOHNSON

DEFENDANT

ORDER

Before the Court is Defendant Richard Johnson’s Motion for Compassionate Release and

Supplemental Motion. ECF Nos. 191, 198. The Government has responded. ECF No. 201. The

Court finds the matter ripe for consideration.

I. BACKGROUND

On November 4, 2010, Defendant was charged with four counts in an eight-count

indictment: (1) Count Five—robbery involving controlled substance, aiding and abetting, in

violation of 18 U.S.C. § 2118(a) and (c)(1) and 18 U.S.C. § 2; (2) Count Six—use, carry, and

possession of a firearm in furtherance of a crime of violence, that is robbery involving controlled

substance, aiding and abetting, in violation of 18 U.S.C. § 942(c)(1)(A) and 18 U.S.C. § 2; (3)

Count Seven—possession with intent to distribute a controlled substance (hydrocodone), aiding

and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C § 2; and (4) Count Eight—use,

carry, and possession of a firearm in furtherance of a drug trafficking crime, that is possession with

intent to distribute a controlled substance (hydrocodone), aiding and abetting, in violation of 18

U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2. Defendant pled guilty to Count Six and Count Eight of

the Indictment.

At the time of Defendant’s sentencing, 18 U.S.C. § 924(c)(1)(C)(i) required that he receive

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a mandatory 25-year consecutive sentence for a “second or subsequent conviction” under § 924(c).

Because Defendant’s first and second § 924(c) convictions were in the same indictment, he

received a mandatory term of imprisonment of seven (7) years (84 months) for his first offense

and a mandatory consecutive term of imprisonment of 25 years (300 months) for his second

offense. See United States v. Allee, 282 F.3d 997, 1001 (8th Cir. 2002) (interpreting the pre-First

Step Act version of § 924(c)(1)(B) as mandating “stacked” consecutive terms for multiple § 924(c)

convictions within a single case). Thus, on June 27, 2012, Defendant was sentenced to eightyfour (84) months imprisonment on Count Six and three hundred (300) months imprisonment on

Count Eight, to run consecutively. The Court imposed a term of supervised release of five (5)

years to run concurrently, ordered a $200 special assessment fee, and ordered restitution in the

amount of $61,952.61. ECF No. 31. ECF No. 80. Defendant is projected to be released from

prison on April 15, 2040.

Defendant has filed the present Motion for Compassionate Release and Supplement, in

which he asks the Court to reduce his sentence from thirty-two (32) years to fourteen (14) years.

He is seeking a reduction of his sentence pursuant to Section 403 of the First Step Act of 2018

(“FSA”) and 18 U.S.C. 3582(c)(1)(A)(i). Defendant notes that the FSA clarified that a “stacked”

25-year mandatory minimum consecutive sentence under § 924(c)(1)(B) may only be imposed

where the defendant has a prior, final § 924(c) conviction. See 18 U.S.C. § 924(c). Defendant

asserts that if he was sentenced today, because both his § 924(c) counts were charged in the same

indictment, his mandatory minimum sentence for his second count would be seven (7) years

instead of twenty-five (25) years.

See id.

He argues that this circumstance presents an

“extraordinary and compelling” reason for a sentence reduction. The Government has responded

in opposition. ECF No. 201.

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II. DISCUSSION

Relief is available under the FSA if the Court finds: (1) that the requested sentence

reduction is warranted due to “extraordinary and compelling reasons;” (2) that the sentencing

factors set forth in 18 U.S.C. § 3553(a) support a reduction “to the extent that they are applicable;”

and (3) that a reduction would be consistent with any applicable policy statements issued by the

Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A). Before an analysis of those factors can

begin, the Court must determine if Defendant has exhausted all administrative remedies available.

18 U.S.C. § 3582(c)(1)(A).

A. Exhaustion of Administrative Remedies

The FSA provides two avenues for a defendant to bring a compassionate release motion to

a district court. The defendant may either file a motion once he “has fully exhausted all

administrative rights to appeal a failure of the [Bureau of Prisons] to bring the motion on the

defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the

defendant’s facility, whichever is earlier.” § 3582(c)(1)(A).

The Bureau of Prisons (“BOP”) has outlined the administrative exhaustion process in its

Program Statement No. 5050.50. In short, a request for compassionate release must first be

submitted to the warden of the BOP facility in which the defendant is housed. 28 C.F.R. §

571.61(a). If the warden approves the request, it is sent to the BOP’s general counsel for approval.

28 C.F.R. § 571.62(A)(1). If the general counsel approves the request, it is sent to the BOP’s

director for a final decision. 28 C.F.R. § 571.62(A)(2). If the director approves, he or she will ask

the United States Attorney in the applicable judicial district to file a compassionate release motion

on BOP’s behalf. 28 C.F.R. § 571.62(A)(3).

If the warden does not respond to the request, the defendant’s administrative remedies are

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deemed exhausted after thirty days. 18 U.S.C. § 3582(c)(1)(A)(i). If the warden denies the

compassionate-release request, the defendant must appeal the decision pursuant to the BOP’s

Administrative Remedy Program. 28 C.F.R. § 571.63(a). If the request is denied by the BOP’s

general counsel or director, that decision is considered a final administrative decision and the

defendant’s administrative remedies are exhausted at that time. 28 C.F.R. § 571.63(b)-(c). Failure

to exhaust the administrative remedies available with the BOP forecloses the consideration of any

motion for compassionate release on its merits. See U.S. v. Raia, 954 F.3d 594, 597 (3rd Cir.

2020).

In this matter, Defendant has requested a “compassionate release/reduction in sentence”

from the warden, and more than thirty days have elapsed without a response from the warden.

ECF No. 198-1. The Government does not contest that Defendant has exhausted his administrative

remedies and is eligible to file his request for relief directly with this Court. ECF No. 201, p. 6.

Accordingly, the Court finds that Defendant has exhausted his administrative remedies and that

his request for release may be evaluated on the merits.

B. Extraordinary and Compelling Reasons

Pursuant to the FSA, the Court can grant Defendant’s request for a sentence reduction “if

it finds that . . . extraordinary and compelling reasons warrant such a reduction . . . and that such a

reduction is consistent with applicable policy statements issued by the [United States] Sentencing

Commission[.]” 18 U.S.C. § 3582(c)(1)(A)(i).

Congress has not defined what constitutes

“extraordinary and compelling” reasons, although it did note that “[r]ehabilitation of the defendant

alone” is insufficient. 28 U.S.C. § 994(t). Instead, the Sentencing Commission was directed to

promulgate “the criteria to be applied and a list of specific” extraordinary and compelling

examples. Id. Thus, the Court looks to the Sentencing Commission’s policy statement in the

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United States Sentencing Guidelines (“USSG”) as a starting point in determining what constitutes

“extraordinary and compelling reasons” under § 3582(c)(1)(A)(i). See id.

The most recent policy statement contemplates a reduction in the term of imprisonment if:

(1) “extraordinary and compelling reasons warrant the reduction;” (2) a new sentence would be

consistent with the factors set forth in 18 U.S.C. § 3553(a); (3) a new sentence would be consistent

with any applicable policy statements, and (4) the defendant is not a danger to the safety of others,

as provided in 18 U.S.C. § 3142(g). USSG § 1B1.13(a). As amended in 2023, the policy statement

describes the following categories of reasons, or a combination thereof, that should be considered

extraordinary and compelling:

“Medical Circumstances of the Defendant,” “Age of the

Defendant,” “Family Circumstances of the Defendant,” “Victim of Abuse,” “Other Reasons,” and

“Unusually Long Sentence.” USSG § 1B1.13(b). Relevant to the instant case are the following

subsections:

(b)(6) Unusually Long Sentence—If a defendant received an unusually long sentence and

has served at least 10 years of the term of imprisonment, a change in the law (other than an

amendment to the Guidelines Manual that has not been made retroactive) may be

considered in determining whether the defendant presents an extraordinary and compelling

reason, but only where such change would produce a gross disparity between the sentences

being served and the sentence likely to be imposed at the time the motion is filed, and after

full consideration of the defendant’s individualized circumstances.

the law (including an amendment to the Guidelines Manual that has not been made

retroactive) shall not be considered for purposes of determining whether an extraordinary

and compelling reason exists under this policy statement. However, if a defendant

otherwise establishes that extraordinary and compelling reasons warrant

a sentence reduction under this policy statement, a change in the law (including an

amendment to the Guidelines Manual that has not been made retroactive) may be

considered for purposes of determining the extent of any such reduction.

USSG § 1B1.13(b)(6) and (c). Subsection (b)(6) specifically authorizes district courts to consider

nonretroactive changes in the law (other than nonretroactive changes to the Guidelines Manual) as

extraordinary and compelling circumstances warranting a sentence reduction, but only under a

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narrow set of circumstances. USSG § 1B1.13(b)(6). Specifically, (1) the defendant must be

serving an unusually long sentence; (2) the defendant must have served at least ten (10) years of

that sentence; (3) the change in the law must have produced a gross disparity 1 between the sentence

being served and the sentence likely to be imposed at the time the motion is filed; and (4) the court

must have fully considered the defendant’s individual circumstances. Id.

Having examined the most recent amendments to USSG § 1B1.13, the Court turns now to

an examination of Eighth Circuit precedent. Prior to the enactment of § 1B1.13(b)(6), the Eighth

Circuit Court of Appeals held that a nonretroactive change in law regarding sentencing “whether

offered alone or in a combination with other factors, cannot contribute to a finding of

‘extraordinary and compelling reasons’ for a reduction in sentence under [18 U.S.C]

§ 3582(c)(1)(A).” United States v. Crandall, 25 F. 4th 582, 586 (8th Cir. 2022). Then, in

Rodriguez-Mendez, the Eighth Circuit also considered the apparent impact of the then-pending

2023 Guidelines amendments, specifically the amendments at Guidelines §§1B1.13(b)(6) and

1B1.13(c), and concluded that those amendments would not change its reasoning in Crandall:

It thus appears that the Commission proposes to adopt (or to express more clearly) that

nonretroactive changes in sentencing law may not establish eligibility for a § 3582

(c)(1)(A) sentence reduction, as we held in Crandall, but may be considered in exercising

a court’s discretion whether to grant compassionate relief to an eligible defendant,

consistent with the Supreme Court’s decision in Concepcion.

For these reasons, we conclude that Crandall remains controlling Eighth Circuit law that

is binding on our panel.

United States v. Rodriguez-Mendez, 65 F.4th 1000, 1004 (8th Cir. 2023). The Eighth Circuit

recognized that USSG § 1B.13(c) generally asserts that nonretroactive changes in the law may not

establish eligibility for compassionate release. Id. However, there was no discussion of the

It does not appear that any circuit courts have determined what kind of disparity rises to the level of “gross disparity.”

United States v. Allen, No. 1:09-cr-320-TCB, 2024 WL 631609, at *6, n.7 (N.D. Ga. Feb. 12, 2024) (collecting cases).

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exception that is carved out in § 1B1.13(b)(6), which allows consideration of nonretroactive

changes in the law—but not Guidelines amendments that have not been made retroactive—when

the issue is whether an offender received an “unusually long sentence.” Subsection 1B.13(b)(6)

appears to be inconsistent and contrary to the Eighth Circuit’s decision in Crandall, which was

decided before the 2023 Guidelines went into effect but after the amendments had been proposed.

In Rodriguez-Mendez, the Eighth Circuit cites to both § 1B.13(b)(6) and § 1.13(c) but does not

discuss the interplay between these two provisions. Thus, as far as the Court can determine, both

Crandall and Rodriguez-Mendez remain controlling Eighth Circuit law that is binding on this

Court. See Rodriguez-Mendez, 65 F.4th at 1004.

In the present case, as explained above, Defendant was sentenced to an an overall 384month term of imprisonment (32 years), which consisted of a mandatory 7-year consecutive term

of imprisonment for his first 18 U.S.C. § 924(c) offense and a mandatory consecutive 25-year term

of imprisonment for his second § 924 offense, which were charged in the same indictment. The

government does not dispute that this is an “extremely long” sentence, see ECF No. 201, p 18, and

Defendant has served almost fourteen years of this sentence, which is more than the ten years

required to qualify for relief under §1B1.13(b)(6).

In 2018, the First Step Act clarified that a “stacked” 25-year mandatory minimum

consecutive sentence under § 924(c) may only be imposed where the defendant has a prior, final

§924(c) conviction. In other words, the sentences for the first and second § 924(c) offenses could

not be “stacked” if both offenses were charged in the same indictment. Thus, had the First Step

Act been in effect at the time Defendant was sentenced, he would have only faced an overall term

of imprisonment of 168 months (14 years), which would consist of a mandatory minimum 7-year

term of imprisonment for each § 924(c) offense charged in the indictment. See 18 USC §

10a

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924(c)(1). The difference in Defendant’s current sentence and what his sentence would be today

is 216 months (18 years), which the Court considers a gross disparity under USSG § 1B1.13(b)(6). 2

Thus, it appears that Defendant falls within the USSG § 1B1.13 exception that would allow

the Court to consider a retroactive change in the law in determining whether Defendant presents

an extraordinary and compelling reason to warrant a sentence reduction. However, binding Eighth

Circuit precedent instructs that a non-retroactive change in the law is not an adequate basis for a

reduction in sentence under 18 U.S.C § 3582(c)(1)(A). See Rodriguez-Mendez, 65 F.4th at 1004;

see also Crandall, 25 F. 4th 582 at 586. Accordingly, the Court must find that Defendant has

failed to show that there are extraordinary and compelling reasons justifying a reduction in his

sentence. 3

III. CONCLUSION

For the reasons stated above, the Court finds that Defendant’s Motion for Compassionate

Release and Supplemental Motion (ECF Nos. 191 and 198) should be and hereby are DENIED.

IT IS SO ORDERED, this 2nd day of July, 2024.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge

The Court notes that at least one other district court has found that an eighteen-year difference in the sentence the

defendant received under § 924(c) and the sentence a defendant would receive today is a gross disparity. United States

v. Rahim, 535 F. Supp. 3d 1309, 1319 & n.11 (N.D. Ga. 2021).

In a motion for release pursuant to the FSA, courts must also determine whether the sentencing factors under 18

U.S.C. § 3553(a) support an inmate’s release and ensure that the defendant is not a danger to the safety of any other

person or the community, as provided in 18 U.S.C. § 3142(g). See USSG 1B.13(a). Because the Court finds that the

binding law in this circuit precludes a finding that Defendant is eligible for compassionate release pursuant to USSG

§1B.13(b)(6), the Court will not address the sentencing factors and safety considerations.

11a

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