13‐396‐cr United States v. Johnson, et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24th day of January, two thousand fourteen.

PRESENT: RALPH K. WINTER, RICHARD C. WESLEY, PETER W. HALL, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA, Appellee,

v. 13‐396‐cr

LAWRENCE JOHNSON, a/k/a Big L, Defendant‐Appellant,

DAVE C. HAMILTON, GARTH BRUCE, a/k/a G‐Man, JOHN ANTHONY SIMMONS, ARF FLAHARTY, a/k/a Carf, ALBERTO FLAHARTY, a/k/a Enrique, a/k/a Rique, JOHNNY DAVIS, a/k/a Father Divine, GEORGE GENOVESE, a/k/a Shorty, TYRONE GRIMES, KAREN SMITH, a/k/a Kat, Defendants.*

* The clerk of the court is directed to amend the official caption as set forth above. _____________________________________

FOR DEFENDANT‐APPELLANT: Darrell B. Fields, Federal Defenders of New York Inc. New York, NY.

FOR THE UNITED STATES: Alixandra E. Smith, (Peter A. Norling, on the brief) Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY.

Appeal from an Order of the United States District Court for the Eastern District

of New York (Gleeson, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order of the district court is AFFIRMED.

Defendant Appellant Lawrence Johnson, appeals the district court’s order

denying his motion to reconsider his sentencing pursuant to

(c)(2) and

the recently modified cocaine sentencing guidelines. We affirm, and in explaining our

decision, assume the parties’ familiarity with the case.

According to Defendant, in re‐sentencing him the district court did not believe

that it had the authority to downwardly depart from the re‐calculated sentencing

guidelines. Defendant’s sole argument is that this court should adopt Justice Steven’s

dissent in Dillon v. United States,

(2010), and hold that the district court was

not bound by the guidelines in a § 3582(c)(2) proceeding. A dissent does not a majority

make. As Defendant recognizes, this Court has expressly rejected the argument he

advances. United States v. Erskine,

(2d Cir. 2013). Since we lack the authority

2 to overturn the decision of a prior panel, even if we were so inclined, we must affirm.

Anderson v. Recore,

(2d Cir. 2003).

For the foregoing reasons, we AFFIRM the order of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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