MEMORANDUM OPINION AND ORDER On December 27, 2023, defendant Wykee Johnson moved pro se for a reduction of his sentence pursuant to 18 U.S.C. §3582(c) and Amendment 821 to the Sentencing Guidelines. The defendant also seeks dismissal of his count of conviction. The defendant is not eligible for a reduction of his sentence pursuant to Amendment 821 and the motion for compassionate release pursuant to §3582(c) is denied. The defendant’s motion for dismissal of his count of conviction is denied. Background On March 22, 2019, pursuant to a plea agreement with the Government, Johnson pleaded guilty to using, carrying, and brandishing a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §924(c)(1)(A)(ii). Johnson was engaged with others in a conspiracy to sell crack cocaine in the Bronx. While two of his co-conspirators punched two individuals, Johnson drew a firearm and shot up and down the street. A bullet from his gun struck a person in the leg. The offense to which Johnson pleaded guilty carried a mandatory minimum sentence of seven years’ imprisonment, pursuant to 18 U.S.C. §924(c)(1)(A)(ii). The defendant’s Sentencing Guidelines was 84 months’ imprisonment. His criminal history category was VI. The defendant received nineteen criminal history points under U.S.S.G. §4A1.1(a) — (c) and (e) for prior convictions in state and federal court and two points under U.S.S.G. §4A1.1(d) because the defendant was under escape status at the time he committed the instant offense. The Probation Department, the defendant, and the Government each requested a sentence of 84 months’ imprisonment, which was the mandatory minimum. On March 22, 2019, the defendant was sentenced principally to a term of 84 months’ imprisonment. The defendant did not appeal. On December 27, 2023, the defendant filed a motion requesting a sentence reduction pursuant to Amendment 821 to the Sentencing Guidelines and for compassionate release. He also asks that his count of conviction be dismissed on the ground it is duplicative. Amendment 821 went into effect on November 1, 2023 and applies retroactively. On February 28, 2024, the United States Probation Department issued a report indicating that the defendant is not eligible for a sentence reduction pursuant to Amendment 821. Johnson is scheduled to be released from custody on June 1, 2025. Discussion This Opinion addresses both Johnson’s motion for a sentence reduction pursuant to Amendment 821 and for compassionate release. Both applications are denied. Finally, Johnson’s request regarding his count of conviction is addressed. I. Amendment 821 A judgment of conviction is ordinarily final. Pursuant to 18 U.S.C. §3582(c)(2), however, a federal court may reduce a defendant’s sentence if the defendant was originally sentenced to a term of imprisonment based on a sentencing range that has “subsequently been lowered” by the Sentencing Commission when that modification is made retroactive. See United States v. Martin, 974 F.3d 124, 136, 139 (2d Cir. 2020). When presented with a motion to reduce a sentence pursuant to §3582(c)(2), the district court must first “determine the amended guideline range that would have been applicable to the defendant if [the amendment] had been in effect at the time the defendant was sentenced.” United States v. Zapatero, 961 F.3d 123, 127 (2d Cir. 2020) (quoting U.S.S.G. §1B1.10(b)(1)); see also Dillion v. United States, 560 U.S. 817, 827 (2010). If the defendant is eligible for a sentence reduction, “a court may reduce the term of imprisonment after considering the factors set forth in section 3553(a) and if such reduction is consistent with applicable policy statements issued by the Sentencing Commission,” which are contained in U.S.S.C. §1B1.10. Martin, 974 F.3d at 136 (citation omitted). Courts may not reduce a term of imprisonment under §3582(c)(2) “to a term that is less than the minimum term of imprisonment specified by a subsequently lowered Guidelines range,” with an exception for defendants who provide substantial assistance to the Government. United States v. Young, 998 F.3d 43, 46 n.1 (2d Cir. 2021). A reduction in sentence pursuant to §3582(c)(2) is not a plenary sentencing proceeding. Dillon, 560 U.S. at 827. Amendment 821 to the Sentencing Guidelines went into effect on November 1, 2023, and applies retroactively. See U.S.S.G. §1B1.10(d). Among other changes and as particularly relevant here, Amendment 821 modified the calculation of criminal history points under U.S.S.G. §4A1.1(d) for those who committed the offense of conviction while under a criminal justice sentence including while under escape status (“status points”). It is unnecessary to determine whether any changes to the Sentencing Guidelines effected by Amendment 821 might have affected the calculation of Johnson’s criminal history score. This is because Johnson is not eligible for a sentence reduction under Amendment 821. His sentencing guidelines range has not changed. Johnson was sentenced to the mandatory minimum term of imprisonment. That was his sentencing guidelines range at the time of his sentence and it remains his sentencing guidelines range. II. Compassionate Release A court may reduce a sentence if it finds that “extraordinary and compelling reasons” warrant a reduction. 18 U.S.C. §3582(c)(1)(A)(i). District courts are tasked with “independently…determin[ing] what reasons, for purposes of compassionate release, are extraordinary and compelling.” United States v. Brooker, 976 F.3d 228, 234 (2d Cir. 2020) (citation omitted). If the Court finds that “extraordinary and compelling reasons” are present, the court must also consider the sentencing factors set forth in 18 U.S.C. §3553(a) before reducing the sentence. United States v. Amato, 48 F.4th 61, 63 (2d Cir. 2022) (citing 18 U.S.C. §3582(c)(1)). Johnson’s December 27 motion indicates that he also seeks compassionate release. He does not include any statement, however, to indicate whether he has exhausted his administrative remedies. He also does not identify any grounds for compassionate release. Thus, this request is denied. III. Vacating Conviction Finally, Johnson seeks dismissal of the §924(c) count to which he pleaded guilty and on which he was sentenced. He explains that it is fatally defective as duplicative, and cites Dean v. United States, 581 U.S. 62 (2017). This application is denied. Johnson’s request is in essence a petition to vacate his conviction. Such an application must be brought as a habeas petition pursuant to 28 U.S.C. §2255. 28 U.S.C. §2255 imposes a “1-year period of limitation” on the filing of a petition under that section. 28 U.S.C. §2255(f)(1). The one-year period of limitation begins to run, as relevant to this motion, from “the date on which the judgment of conviction becomes final.” Id.; Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005) (finding that, where a defendant did not appeal, a conviction is final under §2255 after the period for filing a direct appeal expires). Johnson’s one-year time limit to file therefore expired on April 5, 2020. “A petitioner may secure equitable tolling of the limitations period in certain rare and exceptional circumstances.” Martinez v. Superintendent of E. Corr. Facility, 806 F.3d 27, 31 (2d Cir. 2015), as corrected (Nov. 12, 2015) (citation omitted). To benefit from equitable tolling, the “petitioner must establish that (a) extraordinary circumstances prevented him from filing a timely petition, and (b) he acted with reasonable diligence during the period for which he now seeks tolling.” Id.; Holland v. Florida, 560 U.S. 631, 649 (2010). If the defendant wishes for this motion to be treated as a habeas petition, the motion must “specify all the grounds for relief which are available to the movant and of which he has or, by the exercise of reasonable diligence, should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified.” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quoting Rules Governing Section 2255 Proceedings, Rule 2(b)). Conclusion Johnson’s December 27, 2023, motion for a sentence reduction pursuant to 18 U.S.C. §3582(c)(2) and U.S.S.G. §1B1.10, compassionate release pursuant to §3582(c)(2), and dismissal of count three is denied. Dated: July 15, 2024
