United States v. Willie Johnson, 2013 U.S. App. LEXIS 1034

Johnson was convicted of three federal narcotics offenses.
He moved under 18 U.S.C. § 3582(c)(2) seeking a sentence modification after retroactive amendments to the crack guidelines.
Amendment 750 (retroactive) reduced Johnson’s base offense level, producing an advisory range of 210–262 months, but Amendment 742 (non-retroactive) would have reduced recency points only if retroactive.
The district court reduced Johnson’s sentence to 210 months based on Amendment 750 and declined to further reduce due to Amendment 742’s non-retroactivity.
Johnson petitioned for further relief, arguing due process and statutory issues; the district court’s ruling was challenged on constitutional and statutory grounds.
The Eighth Circuit affirmed, holding the Commission’s non-retroactivity decision valid and § 3582(c)(2) discretionary.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Commission’s non-retroactivity decision is reviewable.	Johnson argues the Commission acted beyond its authority.	Johnson’s view is foreclosed by Anderson; the Commission’s decision is not reviewable under APA.	No; Anderson forecloses review of the non-retroactivity decision.
Whether due process was violated by the Commission’s non-retroactivity.	Johnson asserts Fifth Amendment due process rights were violated.	Section 3582(c)(2) does not create a constitutionally protected liberty interest.	No due process violation; no liberty interest implicated.
Whether APA review extends to Commission policy statements; is there statutory/constitutional constraint on non-retroactivity.	Johnson suggests APA review or due process constraints apply.	Congress excluded the Commission from the APA except for certain guidelines; surplusage avoided by court.	APA review does not apply; non-retroactivity is permissible under SRA structure.

Anderson, 686 F.3d 585 (8th Cir. 2012) (reaffirmed Commission’s power and reviewability framework under SRA)
Harris, 688 F.3d 950 (8th Cir. 2012) (supports APA-Review limitations for Commission actions)
Lopez, 938 F.2d 1293 (D.C. Cir. 1991) (inclusio unius est exclusio alterius principle cited for statutory construction)
Andrade v. U.S. Sentencing Comm’n, 989 F.2d 308 (9th Cir. 1993) (supporting exclusion of APA review for most Commission actions)
Wilkinson v. Austin, 545 U.S. 209 (2005) (due process threshold for liberty interests in prison contexts)
Chapman v. United States, 500 U.S. 453 (1991) (cites due process limitations where punishment is discretionary)
Sandin v. Conner, 515 U.S. 472 (1995) (focus on deprivation nature for due process in prison context)
Hewitt v. Helms, 459 U.S. 460 (1983) (discussed in Hewitt framework for discretionary decisions)
Thompson v. Kentucky Dept. of Corrections, 490 U.S. 454 (1989) (discussed in due process context of discretionary decisions)
Mathews v. Eldridge, 424 U.S. 319 (1976) (statutory due process considerations for liberty interests)
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1 (1979) (statutory expectations and due process in parole-like settings)