govinfo:USCOURTS-njd-2_01-cr-00538-12

Erik Johnson 
Reg. No. 21742-050 
Federal Correctional Institution, FCI Danbury 
Route 37 
Danbury, CT 06811 
Pro Se 
 
Alison Thompson, Esq. 
DOJ-USAO 
970 Broad Street 
Newark, NJ 07102 
Counsel for the United States of America 
 
LETTER OPINION FILED WITH THE CLERK OF THE COURT 
 
Re: United States v. Erik Johnson, Crim. No. 1-538-02 (SDW) 
 
Parties: 
 
 Before this Court are Defendant Erik Johnson’s (“Defendant”) Motion for Reduction of 
Sentence Pursuant to S ection 404 of the First Step Act and Concepcion 1 (“FSA Concepcion 
Motion”), and Defendant’s Motion to Correct and/or Reconsider Sentencing Pursuant to Federal 
Rule of Criminal Procedure 35(a) (“Rule 35 Motion”). (D.E. 268; 273.) This Court finds that, 
having considered the parties’ submissions, and f or the reasons set forth herein, Defendant’s 
Motions are DENIED. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
 This Court writes only for the parties and accordingly limits its discussion of the factual 
and procedural background to only the facts pertinent to the instant decision. A more detailed 
summary of the factual and procedural background can be found in the two opinions issued by the 
 
1 Referring to Concepcion v. United States, 597 U.S. 481 (2022). 
NOT FOR PUBLICATION 
 UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
 
 
CHAMBERS OF 
SUSAN D. WIGENTON 
UNITED STATES DISTRICT JUDGE 
 
 
 
 
 
June 11, 2026 
 
 
MARTIN LUTHER KING COURTHOUSE 
50 WALNUT ST. 
NEWARK, NJ 07101 
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Third Circuit . (D.E. 152 ( affirming conviction and se ntence); D.E. 240 (affirming sentence 
reduction).) 
 In June 2002, Defendant was tried and convicted of c onspiracy to distribute and possess 
with intent to distribute, one (1) kilogram or more of heroin and five ( 5) kilograms or more of 
crack cocaine, in violation of 21 U.S.C. § 846 and a separate count in violation of 21 U.S.C. § 
841(b)(1)(C), for distribution and possession with intent to distribute heroin. Defendant was 
subject to an enhanced 21 U.S.C. § 851(a) penalty for a prior state drug conviction, which adjusted 
his offense level to forty- five under the Guidelines . On November 1, 2002, Defendant was 
sentenced to life on one count and 240 months on the other , to run concurrently. (D.E. 103.) 
Defendant’s sentence was affirmed by the Third Circuit. (D.E. 152.) 
 On May 19, 2016, Defendant moved for a reduction of his sentence under 18 U.S.C. § 
3582(c)(2). (D.E. 215.) On August 18, 2017, Defendant ’s motion was granted, and his life 
sentence was reduced to 480 months. (D.E. 227) Defendant appealed the decision to the Third 
Circuit, which affirmed the reduction to forty years. (D.E. 240.) On September 4, 2019, Defendant 
moved to reduce his sentence under the First Step Act. (D.E. 242.) On November 4, 2020, the 
court determined that Defendant was eligible for relief under the First Step Act but requested 
additional briefing to determine whether the court would grant his motion and reduce his sentence. 
(D.E. 259.) On January 12, 2022, the court denied Defendant’s motion for a reduced sentence 
under the First Step Act. (D.E. 265.) Defendant appealed and the Third Circuit affirmed. (D.E. 
266; 270.) On February 1, 2022, while his appeal was still pending, Defendant filed his Rule 35 
Motion. (D.E. 268.) On March 3, 2023, Defendant filed this instant FSA Concepcion Motion. 
(D.E. 273.) 
II. DISCUSSION 
A. FSA Concepcion Motion 
 Defendant's FSA Concepcion Motion is essentially a motion for reconsideration, which is 
subject to the local rules.2 As such, Local Criminal Rule 1.1, which incorporates Local Civil Rule 
7.1, requires that motions for reconsideration be filed within fourteen days of the relevant order. 
United States v. Tablack , No. 19-374, 2022 WL 37428, at *2 (D.N.J. Jan. 4, 2022). Here, 
Defendant’s motion was filed on March 3, 2023, over a year after the fourteen days elapsed, as the 
court issued the relevant opinion on January 12, 2022. (D.E. 265.) Accordingly, Defendant’s 
motion is procedurally out of time. 
 Nonetheless, nothing within Defendant’s motion demonstrates or justifies a different 
outcome. Defendant argues that the ruling in Concepcion affirms Congress’s intent to require a 
plenary resentencing hearing based on the chosen language of the statute. (D.E. 273.) Defendant 
argues that a full review requires an in-person plenary hearing. (D.E. 273.) However, a plenary 
hearing is not required or guaranteed under Concepcion. See United States v. Shields , 48 F.4th 
183, 192 (2022). Additionally, Concepcion explains that the First Step Act limits a district courts’ 
 
2 Defendant seeks reconsideration of the opinion issued on January 12, 2022. The relief sought is a plenary hearing. PageID:
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discretion to “entertain a motion made under this section to reduce a sentence . . . if the court 
already considered and rejected a motion under the First Step Act.” Concepcion, 597 U.S. at 496 
(citing First Step Act, § 404(c)). That is the case h ere: Defendant was found eligible under the 
Act, but after a review on the merits, his motion was denied . (D.E. 265.) Importantly, the Third 
Circuit affirmed that decision. (D.E. 270.) The facts and circumstances of this case remain as they 
were when the court originally revisited the sentence via the First Step Act. Accordingly, 
Defendant’s FSA Concepcion Motion is denied. 
B. Rule 35 Motion 
 As a preliminary matter, this Court notes that it lacks jurisdiction to consider Defendant’s 
Rule 35 Motion. Under Rule 35(a), “within 14 days after sentencing, the court may correct a 
sentence that resulted from arithmetical, technical, or other clear error.” Fed. R. Crim. P. 35. The 
fourteen-day time limit is jurisdictional and begins to run from the “oral pronouncement of 
sentencing.” United States v. Higgs, 504 F.3d 456, 458 (3d Cir. 2007). While the Rule 35 Motion 
was dated January 25, 2022 (thirteen days after the January 12, 2022 opinion), Rule 35(a) prevents 
this Court from making certain changes to a sentence after the period expires, “regardless of 
whether the motion itself was filed within the fourteen -day window.” United States v. Depack , 
Civ. No. 18-00133, 2019 WL 262649, at *2 (D.N.J. Jan. 11, 2019) (citing Higgs, 504 F.3d at 458). 
 Defendant attempts to invoke the prison mailbox rule to cure these timing issues. (D.E. 
268.) Under the prison mailbox rule, a pleading is deemed filed at the time a prisoner executes it 
and delivers it to prison authorities for mailing. Moody v. Conroy, 680 F. App’x 140, 144 (3d Cir. 
2017). However, even if the rule w ere applicable, it would not cure the Rule 35(a) jurisdictional 
defect as the rule limits this Court’s action, not the Defendant’s. Higgs, 504 F.3d at 458-59 (“[T]he 
[time] limit in the Rule does not apply to counsel’s motion. It is expressly in terms of the District 
Court’s action.”). This time limit is a “strict” jurisdictional requirement, “such that a district court 
lacks authority to act under the Rule outside this period.” United States v. Miller, 594 F.3d 172, 
182 (3d Cir. 2010) (citing Higgs, 504 F.3d at 458-59). Therefore, this Court lacks jurisdiction to 
consider Defendant’s Rule 35 Motion and must dismiss Defendant’s motion. 
 Moreover, even if this Court were to consider the merits of Defendant’s Rule 35 Motion, 
nothing within it suggests a non-frivolous basis for overturning or reducing Defendant’s sentence 
based on “clear error.” Higgs, 504 F.3d at 457, 458. Defendant bases his motion on two “clear 
errors”. (D.E. 268.) First, Defendant argues against the court’s finding that he was involved in 
two separate incidents of assault against women during the charged conspiracy, as he was in 
custody at the time the said assaults took place . (D.E. 268.) Second, Defendant argues against 
that court’s conclusion that the heroin conspiracy, if separate , would subject him to the same 
sentencing Guidelines range. (D.E. 268.) 
 Defendant’s first error fails to justify his Rule 35 Motion. There are three instances of 
Defendant assaulting women in this case , but Defendant does not specify which of the three 
incidents he is referring to. Regardless, all three incidents were examined during Defendant’s trial 
and are now part of the official record, which cannot be changed. Defendant’s second error also 
fails to justify his Rule 35 Motion. Defendant previously raised the argument on appeal , and at PageID:
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most, the alleged error is harmless because Defendant was not convicted of a heroin-only offense. 
As such, any speculation as to a different charge does not meet the standard as be ing an 
“arithmetical, technical, or other clear error.” F. R. Crim. P. 35(a). 
 The Motions raise no issues to suggest that this Court has the jurisdiction to adjust 
Defendant’s sentence, his sentence is incorrect, or he is entitled to a plenary resentencing hearing. 
Therefore, Defendant has stated no claims that merit relief. Accordingly, this Court denies 
Defendant’s Motions. 
III. CONCLUSION 
 For the foregoing reasons, Defendant’s Motions are DENIED. An appropriate order follows. 
 
 
 /s/ Susan D. Wigenton 
 SUSAN D. WIGENTON, U.S.D.J. 
 
Orig: Clerk 
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