United States v. Alonzo Johnson, 20-1469

Background

Johnson was convicted in 2012 of conspiracy to distribute ≥5 kg cocaine and ≥28 g crack; sentenced to 300 months; conviction and sentence were affirmed on direct appeal.
He filed a §2255 motion that was denied and was denied a certificate of appealability.
In 2019 Johnson moved for discovery and filed a §404 First Step Act motion seeking a sentence reduction.
The District Court denied both motions on January 29, 2020, concluding Johnson was ineligible for a §404 reduction because his sentence was imposed in accordance with the Fair Sentencing Act (FSA).
Johnson’s notice of appeal was filed late; this court remanded, the District Court found excusable neglect and extended the appeal period, so appellate jurisdiction exists.
The District Court’s dispositive finding was that FSA applied at Johnson’s 2013 sentencing, so §404 relief (which applies only to those sentenced before FSA) was unavailable; Johnson’s attempts to relitigate his conviction and seek discovery were improper on a §404 motion and procedurally forfeited.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Johnson is eligible for a sentence reduction under First Step Act §404	Johnson argued he should be resentenced under First Step Act changes (reducing mandatory minimums)	Government argued §404 applies only to those sentenced before the Fair Sentencing Act and Johnson was sentenced in accordance with the FSA	Johnson is ineligible because his sentence was imposed in accordance with the FSA
Whether the Fair Sentencing Act applied at Johnson's sentencing	Johnson contended he would have faced lower mandatory minima under FSA/First Step Act	Government maintained FSA applied at sentencing and §401 of First Step Act (other reductions) is not retroactive via §404	Court held FSA applied at his 2013 sentencing; §401 changes are not available retroactively through §404
Whether §404 is a vehicle to relitigate conviction or grand jury matters	Johnson sought to challenge use of co-conspirator powder-cocaine amounts and grand jury proceedings	Government argued such challenges were previously rejected and are not appropriate in a §404 motion	Court held §404 is not the proper vehicle; prior appeals and §2255 denials foreclose relitigation
Whether discovery motion was properly denied / preserved on appeal	Johnson sought discovery to support challenges to his criminal proceedings	Government noted defendant forfeited the discovery claim by not pressing it in the opening brief	Court affirmed denial and found the discovery issue forfeited on appeal

Key Cases Cited

United States v. Jackson, 964 F.3d 197 (3d Cir. 2020) (standard of review and §404 eligibility principles)
United States v. Birt, 966 F.3d 257 (3d Cir. 2020) (explaining FSA context and §404 procedure)
United States v. Hart, 983 F.3d 638 (3d Cir. 2020) (district court cannot grant §404 relief if sentence imposed in accordance with FSA)
United States v. Dixon, 648 F.3d 195 (3d Cir. 2011) (FSA applies to defendants sentenced after its enactment even if offense preceded it)
United States v. Aviles, 938 F.3d 503 (3d Cir. 2019) (§401 First Step Act changes are not made retroactive by §404)
United States v. Johnson, [citation="639 F. App'x 78"] (3d Cir. 2016) (affirming Johnson’s conviction and conspiracy findings)
In re Wettach, 811 F.3d 99 (3d Cir. 2016) (forfeiture of appellate arguments not developed in opening brief)
Gambino v. Morris, 134 F.3d 156 (3d Cir. 1998) (arguments raised first in reply brief not considered)
United States v. Console, 13 F.3d 641 (3d Cir. 1993) (errors in grand jury proceedings are harmless if petit jury later finds guilt beyond a reasonable doubt)