govinfo:USCOURTS-casd-3_12-cr-00623-5

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
UNITED STATES OF AMERICA 
Plaintiff, 
v. 
DIANGELO JOHNSON 
Defendant. 
 Case No.:  12cr0623-LAB 
                  17cr1213-LAB 
                   
 
ORDER DENYING MOTION FOR 
REDUCTION OF SENTENCE 
[12cr0623-Dkt. 160; 17cr1213-
Dkt. 59]1 
 
In 2017, Diangelo Keith Johnson (“Johnson”) was convicted in case number 
17cr1213-LAB of Felon in Possession of a Firearm  and Criminal Forfeiture in 
violation of 18 U.S.C. §§ 922(g)(1); 28 U.S.C. § 2461(c). The Court imposed a total 
sentence of 90 months imprisonment followed by 3 years of supervised release.  
He was also sentenced in case 12cr623-LAB to 12 months imprisonment for a 
supervised release violation, to run consecutively to 17cr1213-LAB.   His projected 
release date is approximately June 6, 2024. (Dkt. 59 at 2).   
Johnson moves for a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A), 
which permits a court to modify a defendant’s term of imprisonment if it concludes 
that “extraordinary and compelling” reasons merit a reduction after considering the 
 
1All docket citations are to 17cr1213-LAB unless otherwise noted. 
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factors presented in 18 U.S.C. § 3553(a).  Specifically, he requests the Court 
reduce his sentence to time served because he has a seizure disorder that he 
reports is getting progressively worse and causing him to lose his memory. (Dkt. 59 
at 1).  He also reports  “there is a decline in his overall health” and “the current 
pandemic is making his condition significantly worse.” (Id. at 1). Lastly, he claims 
that because of his ongoing seizure disorder, he has increased susceptibility to 
COVID-19. (Id. at 3).  
The Government opposes Johnson’s motion, arguing it  should be denied 
because he has refused to get vaccinated. The Government also opposes the 
motion because Johnson has a lengthy criminal history, including several firearms 
violations, and early release would be inconsistent with the 18 U.S.C.  § 3553(a) 
factors. (Dkt. 64 at 1). The Government points out that “BOP [the Federal Bureau 
of Prisons] is still operating under a modified operations plan designed to maximize 
the safety of the inmates in its custody” and that Johnson has refused vaccination 
at least twice despite the BOP making COVID-19 vaccines “universally available 
to every employee and inmate in every BOP institution .” (Id. at 2). Regarding the 
§ 3553(a) factors, the Government argues “Defendant’s history of illegal firearm 
possession, violent offenses, drug offenses, and history of ignoring Court orders 
makes him dangerous to the community….” (Id. at 22).   
A review of Johnson’s medical records supports the Government's argument 
that he has refused the Covid-19 vaccine more than once , and Johnson doesn’t 
contradict that.
2 (Dkt. 66).   His medical records also establish that he has not 
complied with his prescribed anti-seizure medication regimen. (Id. ). There are 
multiple instances noting his refusal to take  prescribed medication. (Id. ). This 
evidence undermines  Johnson’s allegations that his “seizures are getting 
 
2 The Government submitted an electronic copy of Johnson’s medical records 
directly to chambers accompanied by a motion to seal which was granted on 
February 11, 2022.  (Dkt. 65 and 66).  
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progressively worse” because of the pandemic or that the modified programming 
due to COVID-19 “makes it likely that he cannot care for his medical needs.” 
(Dkt. 59 at 5).   
Several courts in this Circuit have held that “an inmate’s refusal to receive a 
COVID-19 vaccination undercuts that inmate’s assertion of extraordinary and 
compelling circumstances justifying compassionate release.”  United States v. 
Joseph, No. 06cr00080, 2021 WL 5122355 at *5 (D. Hawai’i. November 3, 2021); 
see also United States v. Hernandez , No. 19cr02750-BAS-1, 2021 WL 5052970 
(“Mr. Hernandez could reduce his risk from COVID -19 if he wanted to accept the 
vaccine that is being offered by the B OP.”).  And both the Sixth and Seventh 
Circuits have held that “a defendant’s incarceration during the COVID -19 
pandemic--when the defendant has access to the vaccine --does not present an  
‘extraordinary and compelling  reason’ warranting a sentence reductio n.” United 
States v. Lemons , 15 F.4th 747, 751 (6th Cir. 2021); see also United States v. 
Broadfield, 5 F. 4th 801, 802-803 (7th Cir. 2021)  (“[A] prisoner who remains at 
elevated risk because he has declined to be vaccinated cannot plausibly 
characterize that risk as an “extraordinary and compelling” justification for release. 
The risk is self-incurred.”).  
The Court concludes that Johnson hasn’t established that the BOP is unable 
to effectively safeguard his health during the remainder of his sentence.  Currently, 
only fourteen inmates have an active COVID -19 infection in the facility in which 
Johnson is housed.  Bureau of Prisons, BOP: COVID-19. Update, 
https://www.bop.gov/coronavirus (last acce ssed February 11 , 2022 ).  These 
institutional circumstances mitigate the risk that he will contract COVID-19 despite 
being unvaccinated. Johnson has not demonstrated “extraordinary and compelling 
reasons” justifying compassionate release.  
 The Court likew ise concludes the § 3553(a) factors continue to support 
maintaining Johnson’s original sentence. Both cases for which he is serving prison 
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time involve his illegal possession of firearms.  Notably, he was on supervised 
release in the earlier case when he was arrested and charged  with violating the 
same federal statute. Additionally, Johnson has a lengthy criminal history that is 
unquestionably serious. His overall criminal history spans two decades as detailed 
in his PSR. (Dkt. 30). The Court finds there is a continuing need for protection of 
the public and deterrence under § 3553(a)(2)(B).  His health conditions do not 
outweigh the need for him to complete his sentence.  His motion for early release 
is DENIED. 
IT IS SO ORDERED. 
 
Dated:  February 11, 2022 
 
 
 Honorable Larry Alan Burns 
United States District Judge 
 
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