United States v. Antonio Burns

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 25, 2022
• Docket: 21-5004
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0043n.06

No. 21-5004

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Jan 25, 2022 UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE EASTERN DISTRICT OF ) KENTUCKY ANTONIO BURNS, ) ) Defendant-Appellant. )

Before: ROGERS, WHITE, and STRANCH, Circuit Judges.

PER CURIAM. Antonio Burns appeals the district court’s amended judgment entered

upon his resentencing following our remand. As set forth below, we AFFIRM.

In 2000, a jury convicted Burns of engaging in a continuing criminal enterprise, in violation

of 21 U.S.C. § 848 (Count 1); conspiring to possess with intent to distribute cocaine base, in

violation of 21 U.S.C. § 846 (Count 2); using a communication facility to facilitate a drug

trafficking crime, in violation of 21 U.S.C. § 843(b) (Counts 5, 6, and 7); attempting to possess

with intent to distribute cocaine base, in violation of 21 U.S.C. § 846 (Count 8); and attempting to

corruptly persuade and influence a witness in an official proceeding, in violation of 18 U.S.C.

§ 1512(b)(1) (Count 9). Upon the government’s motion, the district court dismissed Count 2. The

district court sentenced Burns to concurrent terms of life imprisonment on Counts 1 and 8 and

lesser concurrent prison terms on the remaining counts but did not impose a term of supervised No. 21-5004, United States v. Burns

release on any count. We affirmed Burns’s convictions and sentence. United States v. Burns,

298 F.3d 523 (6th Cir. 2002).

In 2015, the district court granted Burns’s motion for a sentence reduction pursuant to

18 U.S.C. § 3582(c)(2) based on Amendment 782 to the sentencing guidelines and reduced his

sentence from life to 360 months of imprisonment. Again, the district court did not impose a term

of supervised release.

In 2019, Burns filed a motion to alter or amend the district court’s judgment pursuant to

Federal Rule of Civil Procedure 59(e), asserting in relevant part that the district court failed to

include a term of supervised release on Count 8, the attempted possession count, as required by

statute. Burns explained in a subsequent letter that eligibility for an early release program required

a term of supervised release. Burns also moved for a sentence reduction under the First Step Act

of 2018, Pub. L. No. 115-391, 132 Stat. 5194. The district court denied Burns’s motion for a

sentence reduction, concluding that he was not eligible for relief under the First Step Act. United

States v. Burns, No. 2:99-cr-00003 (E.D. Ky. Feb. 19, 2019) (order). The district court granted

Burns’s motion to alter or amend in part and amended its judgment to include a five-year term of

supervised release on Count 8. Id. (amended order).

Burns appealed the district court’s order. On appeal, the government conceded error and

moved to remand the case for a resentencing hearing on Count 8, agreeing that Burns was eligible

for a sentence reduction under the First Step Act on Count 8 and that the district court erred by

adding a term of supervised release on Count 8 without conducting a resentencing hearing. We

vacated the district court’s order, granted the government’s motion, and remanded the case “for

further proceedings and for reconsideration in view of United States v. Boulding, 960 F.3d 774

(6th Cir. 2020).” United States v. Burns, No. 19-5222 (6th Cir. Aug. 21, 2020) (order).

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On remand, the original sentencing judge recused himself, and the case was reassigned.

Burns requested that the district court grant a downward variance to a sentence of time served and

impose a five-year term of supervised release. The government responded that Burns was entitled

to resentencing on Count 8 only and that the district court should impose a six-year term of

supervised release. At the resentencing hearing held on December 17, 2020, the district court

declined to revisit Burns’s 360-month prison term on Count 1, reduced his prison term on Count

8 to 240 months, and imposed a six-year term of supervised release on Count 8 and lesser

concurrent terms of supervised release on the other counts. The district court denied Burns’s post-

judgment motion objecting to the supervised release terms, citing lack of jurisdiction because an

appeal had already been docketed in our court. However, the district noted that it would have

denied the motions on the merits in any event. United States v. Burns, No. 2:99-cr-00003, 2021

WL 141688 (E.D. Ky. Jan. 14, 2021).

On appeal, Burns raises the following arguments: (1) the district court erred in failing to

hold a plenary resentencing hearing after our general remand, (2) the district court engaged in

vindictive resentencing by increasing his term of supervised release on Count 8 from five to six

years and adding terms of supervised release on the other counts, and (3) his case should be

remanded to a different judge.

We review de novo the scope of our remand—whether general or limited. United States

v. McFalls, 675 F.3d 599, 604 (6th Cir. 2012). “A general remand effectively wipes the slate

clean” and “gives the district court authority to redo the entire sentencing process.” Id. at 606.

“Limited remands explicitly outline the issues to be addressed by the district court and create a

narrow framework within which the district court must operate.” United States v. Campbell,

168 F.3d 263, 265 (6th Cir. 1999). Courts presume that a remand is general. United States v.

Richardson, 948 F.3d 733, 738 (6th Cir. 2020) “To overcome the presumption that a remand is

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general, we must ‘convey clearly our intent to limit the scope of the district court’s review with

language that is in effect, unmistakable.’” Id. (quoting United States v. Woodside, 895 F.3d 894,

899 (6th Cir. 2018)).

Burns argues that we issued a general remand and that the district court therefore erred in

failing to conduct a plenary resentencing hearing. We agree that our order lacked “unmistakable”

language limiting the scope of Burns’s resentencing: “This case is REMANDED to the district

court for further proceedings and for reconsideration in view of United States v. Boulding,

960 F.3d 774 (6th Cir. 2020).” But the district court’s error in interpreting the scope of our remand

was harmless. “Sentencing errors are harmless where this court is convinced that the ‘error at

sentencing did not cause the defendant to receive a more severe sentence’ than would have existed

without the error.” United States v. Davis, 751 F.3d 769, 773 (6th Cir. 2014) (quoting United

States v. Gillis, 592 F.3d 696, 699 (6th Cir. 2009)). According to Burns, the district court erred in

refusing to revisit his 360-month prison term on Count 1, the continuing criminal enterprise count.

Although the district court believed that its resentencing authority was limited to applying the First

Step Act to Count 8 and imposing supervised release, the district court made the alternative finding

that, upon plenary resentencing, it would impose a sentence of 384 months of imprisonment on

Count 1 based on the sentencing factors under 18 U.S.C. § 3553(a). The district court instead

reimposed the 360-month prison term on Count 1 and stated that a lower sentence “would seriously

diminish the seriousness of that conduct and not provide appropriate punishment.” As the district

court made clear, its failure to conduct a plenary resentencing did not result in a more severe

sentence on Count 1.

While the district court erred in failing to recognize that the scope of the remand was not

limited to Count 8, the court explained in detail that even if it had authority to reduce the sentence

on Count 1, it would not do so based on the nature and circumstances of the offense, as well as

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Burns’s criminal history. We acknowledge, as the district court did at the hearing, the significant

progress, rehabilitation, and job training Burns accomplished while incarcerated. But in

determining the weight to be given to Burns’s admirable growth while incarcerated, we must defer

to the district court’s calculus and extensive discussion of why it would have imposed a harsher

sentence on Count 1 if it were to resentence Burns. Accordingly, any error in failing to lower

Burns’s sentence on Count 1 is harmless.

Burns also argues that the district court engaged in vindictive resentencing by increasing

his term of supervised release on Count 8 from five to six years and adding terms of supervised

release on the other counts. As Burns asserts, there is “a presumption of vindictiveness if a

sentence after a remand is longer than the original sentence.” United States v. Mullet, 822 F.3d

842, 852 (6th Cir. 2016) (citing North Carolina v. Pearce, 395 U.S. 711, 723-26 (1969)). But this

presumption does not apply “where a different judge imposes a sentence after appeal.” McFalls,

675 F.3d at 607. “When there is no presumption of vindictiveness, the defendant must show actual

vindictiveness.” Id. After our remand, the original sentencing judge recused himself, and a

different judge conducted the resentencing hearing. No presumption of vindictiveness arises, and

Burns has not made a showing of actual vindictiveness. The district court explained why the

§ 3553(a) factors justified a six-year term of supervised release on Count 8 and reasonably imposed

lesser concurrent terms of supervised release on the other counts.

Finally, because remand is not warranted, we need not address Burns’s argument that his

case should be remanded to a different judge.

For these reasons, we AFFIRM the district court’s amended judgment.

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