FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 25, 2021
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Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6095
(D.C. No. 5:09-CR-00021-R-3)
TUESDAY SHALON JOHNSON, (W.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before MORITZ, BALDOCK, and EID, Circuit Judges.
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Tuesday Johnson appeals the district court’s order denying her motion for a
sentence reduction under the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.
5194, 5222. We affirm.
Johnson pleaded guilty in 2009 to distributing cocaine base, also known as
crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Neither the indictment nor the
plea agreement specified a particular quantity of crack cocaine. Accordingly, the
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a);
10th Cir. R. 32.1(A).
statutory sentencing range for her offense was set by § 841(b)(1)(C), which
established a lower range than subsections (b)(1)(A) and (b)(1)(B) and—unlike those
sections—did not include a mandatory minimum sentence. The district court
ultimately imposed the statutory maximum sentence of 240 months. See
§ 841(b)(1)(C).
In 2019, Johnson filed a motion for a sentence reduction under the First Step
Act, which allows a district court to impose a reduced sentence if the defendant was
convicted of a covered offense committed before August 3, 2010, for which the
statutory penalties had been modified by Section 2 or 3 of the Fair Sentencing Act of
2010, Pub. L. No. 111-220, 124 Stat. 2372. The district court denied this motion,
holding that Johnson was ineligible for relief under the First Step Act because the
Fair Sentencing Act did not affect § 841(b)(1)(C)’s statutory penalties.
In her opening brief on appeal, Johnson argued that the district court erred in
finding that she was not eligible for relief under the First Step Act. But she concedes
that this argument has now been foreclosed by the Supreme Court’s recent holding in
Terry v. United States that a defendant sentenced under § 841(b)(1)(C) is not entitled
to relief under the First Step Act because “the Fair Sentencing Act modified the
statutory penalties only for subparagraph (A) and (B) crack offenses—that is, the
offenses that triggered mandatory-minimum penalties.” No. 20-5904, 2021 WL
2405145, at *5 (June 14, 2021). Because Terry conclusively resolved the only issue
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Johnson raised in this appeal, we affirm.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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