United States v. Johnson

• Decision Date: 03 November 2021
• Docket Number: 10-CR-6128 CJS-6
• Parties: UNITED STATES, v. ASTON JOHNSON, a/k/a Richard Burke, a/k/a Daniel Arroyo, a/k/a Robert Brooks, Defendant
• Court: U.S. District Court — Western District of New York

UNITED STATES,
v.
ASTON JOHNSON, a/k/a Richard Burke, a/k/a Daniel Arroyo, a/k/a Robert Brooks, Defendant

No. 10-CR-6128 CJS-6

United States District Court, W.D. New York

November 3, 2021

DECISION AND ORDER

CHARLES J. SIRAGUSA UNITED STATES DISTRICT JUDGE

INTRODUCTION

Now before the Court is Aston Johnson's (“Defendant”) pro se “Motion for the Application of Section 403 and Section 401 of the First Step Act of 20172018.” For reasons explained below, the application is denied.

BACKGROUND

The reader is presumed to be familiar with the underlying facts of this case. Very briefly, Defendant was a member of an interstate marijuana distribution ring who, along with two of his co-defendants, traveled to Rochester and committed a cold-blooded execution of three men who he believed had cheated him out of drugs and money. Following a jury trial Defendant was convicted of violations of 21 U.S.C. § § 846 & 851 (Conspiracy to Possess with Intent to Distribute and to Distribute 1, 000 Kilograms or More of Marijuana), 18 U.S.C. § 924(c)(1) (Possession of a Firearm in Furtherance of a Drug Trafficking Crime), 18 U.S.C. §§ 924(c)(1) & 924(j)(1)&(2) (Possession and Discharge of a Firearm in Furtherance of a Drug Trafficking Crime and with Such Firearm Did Commit Murder) and 21 U.S.C. § 848(e)(1)(A) (Conspiracy to Possess with Intent to Distribute and to Distribute 1, 000 Kilograms or More of Marijuana, and Did Intentionally Kill and Cause the Intentional Killing of an Individual). The Court sentenced Defendant principally to four consecutive life sentences plus sixty

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months.

The United States Court of Appeals for the Second Circuit denied an appeal by Defendant and his two co-defendants, Richard Anderson (“Anderson”) and Andrew Wright (“Wright”), observing in pertinent part:

Defendants, who were participants in a cross-country marijuanadistribution operation, were convicted under drug-conspiracy, firearm-possession, and murder statutes in connection with their murders of Robert Moncriffe, Mark Wisdom, and Christopher Green (together, the “Victims”) in Greece, New York

Second Circuit Case 14-1027, Document 469 at pp. 1, 6-7. The Second Circuit's decision also discussed the elaborate planning and coordination that the defendants engaged in prior to the murders, which included travel from distant states with stops along the way to purchase the firearms that were used to commit the murders. Id. at pp. 2, 6-7.

Defendant did not thereafter file any collateral attack on his conviction or sentence.^[1] Defendant, who is now 52 years of age, is serving his sentence at USP Pollock.

On August 3, 2020, Defendant, proceeding pro se, filed the subject motion (ECF No. 613) for a reduced sentence, captioned as a “Motion for the Application of Section 403 and Section 401 of the First Step Act of 2017-2018.” The motion has two aspects.

First, Defendant asks the Court to reduce his sentence pursuant to Section 403(a) of the First Step Act which, in pertinent part,

eliminated so-called § 924(c) ‘stacking,' whereby multiple § 924(c) charges in the same indictment could yield enhanced consecutive mandatory minimum sentences under § 924(c)(1)(C) if a defendant was convicted on more than one of the charged § 924(c) counts

United States v. Waite, 12 F.4th 204, 209 (2d Cir. 2021) (citation omitted).

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Defendant maintains that his multiple 924(c) sentences were “stacked” in the manner that was later prohibited by Section 403(a). Section 403(a) was signed into law on December 21, 2018, more than four years after Defendant was sentenced on April 1, 2014, and does not apply retroactively to persons who were sentenced prior to its enactment.^[2] Nevertheless, Defendant argues that the subsequent enactment of Section 403(a) shows that his sentence was “fundamentally unfair” in violation of the 5^th Amendment Due Process Clause, insofar as it involved “stacked” consecutive sentences.^[3]

Second, Defendant argues that his “enhanced sentence for a prior drug felony offense cannot stand under Section 401 of the First Step Act of 2018.” In that regard, when Defendant was sentenced in 2014 under Count 1 of the Indictment for conspiracy to possess with intent to distribute and to distribute 1000 kilograms or more of marijuana, the mandatory minimum sentence for someone like him, who had a prior conviction for a felony drug offense (851 enhancement), under 21 U.S.C. § 841(b)(1)(A), was twenty (20) years, with a maximum of life. Section 401 of the First Step Act amended 21 U.S.C. § 841(b)(1)(A) by changing that sentencing range to a mandatory minimum of fifteen years and a maximum of life. Defendant argues that because of Section 401 of the First Step Act, “this Court is now invested with the discretion to reconsider [his] sentence for Count 1.”

On January 15, 2021, the Government filed a response, opposing Defendant's application. The Government generally contends that, “the motion should be denied [since] the changes to the law which Johnson invokes simply do not apply to [him].” More specifically, the Government indicates that

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Defendant's argument concerning his multiple 924(c) sentences lacks merit for two reasons, namely, the section of the First Step Act to which he refers does not apply retroactively, and his 924(c) sentences were not “stacked” in any event:

Section 403(b) [of the First Step Act] provides that the amendments concerning § 924(c)'s penalty provisions “apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” Accordingly, the § 924(c) amendments do not affect defendants like Johnson who were sentenced before December 21, 2018, when the First Step Act was enacted.

Moreover, Johnson's sentence on his 924(c) convictions in Counts 2, 3, 5 and 7 were not based on any type of “stacking.” The sentence on the Count 2 conviction was the regular mandatory minimum of 60 months. The life sentences on each of the three 924(c) murder counts were based on the applicable guidelines which called for a life sentence on each.

Government's Resp., ECF No. 618 at p. 4.

The Government similarly contends that Defendant's argument concerning his sentence under Count 1 of the Indictment lacks merit for two reasons, namely, the section of the First Step Act to which he refers does not apply retroactively, and his sentence was not affected by any change in the statutory mandatory minimum:

The life sentence imposed by the Court on the Count 1 conviction for the drug conspiracy was based on the applicable guidelines which cross-referenced the murder guidelines and thus resulted in the guideline offense level for Count 1 of 47. Thus, the reduction of the mandatory minimum from 20 years to 15 years for recidivism under the First Step Act does not impact the sentence imposed on Count 1. Moreover, as with the changes in Section 403 of the First Step Act, the changes in Section 401 of the Act also “apply to any offense that was committed before the date of enactment of th[e] Act [December 21, 2018], if a sentence for the offense has not been imposed as of such date of enactment.” Since this Court sentenced the defendant on March 11, 2014, the changes to the

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mandatory minimum sentences for recidivist drug traffickers would still not apply to Johnson, even if they were relevant, which they are not.

Government's Resp., ECF No. 618 at p. 5.

Finally, the Government indicates that to the extent that Defendant's application can be construed as seeking “compassionate release” under 18 U.S.C. § 3582(c)(1)(A), it should...