United States v. Shawn Johnson
697 F.3d 1190
8th Cir.
2012
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CEVILLA v. GONZALES

No. 12-1553

United States Court of Appeals, Seventh Circuit

1190

Before DANIEL A. MANION, Circuit Judge, ILANA DIAMOND ROVNER, Circuit Judge, SHARON J. COLEMAN, District Court Judge.

ORDER

After the petitioner filed a petition for rehearing and rehearing en banc, the National Immigrant Justice Center filed an amicus curiae brief in which it expressed concern that our opinion might be read to render unreviewable all instances where the Board of Immigration Appeals refuses to exercise its sua sponte authority to reopen a case—including cases in which the Board has committed a legal or constitutional error. Such a reading would certainly conflict with our precedent. See, e.g.,

. But our opinion should not be read that broadly; we do not mean to foreclose review of the Board‘s denial of a motion to reopen sua sponte in cases where a petitioner has a plausible constitutional or legal claim that the Board misapplied a legal or constitutional standard. That is not the type of claim that the petitioner advanced in this case, so the Board‘s decision is unreviewable.

That said, on consideration of the petition for rehearing filed by petitioner-appellant, all judges on the original panel have voted to deny rehearing. Further, no judge in active service has requested a vote on the petition for rehearing en banc. The petition is therefore DENIED.

UNITED STATES of America, Appellee v. Shawn Demar JOHNSON, Appellant

No. 12-1553

United States Court of Appeals, Eighth Circuit

Oct. 30, 2012

Rehearing and Rehearing En Banc Denied Dec. 26, 2012

Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.

Submitted: Sept. 18, 2012.

B. John Burns, AFPD, Des Moines, IA, for appellant.

Andrew H. Kahl, AUSA, Des Moines, IA, for appellee.

PER CURIAM.

Shawn Johnson appeals from the district court‘s1 denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We affirm.

After Mr. Johnson pleaded guilty to possessing cocaine base (crack) with the intent to distribute it, see 21 U.S.C. § 841(a)(1), the district court sentenced him to 30 months’ imprisonment in accordance with a plea agreement that Mr. Johnson had entered into under Fed. R. Crim. P. 11(c)(1)(C). Mr. Johnson later moved for a sentence reduction based on retroactive amendments to the Sentencing Guidelines. See U.S.S.G., app. C, amend. 750. To be eligible for a reduction, Mr. Johnson had to have been sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). He maintains that his sentence was “based on a sentencing range” because his plea agreement states that his 30-month sentence “adequately takes into account all of the factors to be considered under the advisory sentencing guidelines that apply to this offense.”

We agree with the district court that this language does not make Mr. Johnson eligible for a reduction. According to Justice Sotomayor‘s concurring opinion in

, the principles of which supply the rule of decision in this case, see
, a sentence under Rule 11(c)(1)(C) is “based on” the Guidelines if the plea agreement “expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment,”
(Sotomayor, J., concurring). But here, though the Guidelines were adverted to generally, there is no express connection between them and Mr. Johnson‘s sentence: there was no intimation that the agreed-upon “‘sentence [was] determined pursuant to the Sentencing Guidelines.‘” Cf. id. at 2699 (quoting the plea agreement in Freeman). The agreement does not “make clear that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which [Mr. Johnson] pleaded guilty,” since a Guidelines “sentencing range is [not] evident from the agreement itself.” Id. at 2697. We thus cannot say that the Guidelines “range serves as the basis or foundation for the term of imprisonment.” Id. at 2695.

Affirmed.

Notes

1
The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa.