United States v. Burden

860 F.3d 45, 2017 U.S. App. LEXIS 10746, 2017 WL 2621661
Court of Appeals for the Second Circuit·Decided June 19, 2017·No. Docket Nos. 15-1080, 15-1183·Published·Cited by 63 cases

Opinions

Judge KEARSE concurs in a separate opinion.

PER CURIAM:

In 2003, a jury convicted defendants-appellants Kelvin Burden and Jermaine Buchanan of, among other things, racketeering, violent crimes in aid of racketeering, and conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base and five kilograms or more of cocaine. Both men were sentenced to life imprisonment. After exhausting their direct appeals, both defendants brought habeas petitions to vacate their convictions pursuant to 28 U.S.C. § 2255. In October 2014, each defendant entered into a “Stipulation for Resentencing” with the government, in which the defendants agreed that they would withdraw their ha-beas petitions in exchange for being resen-tenced based on a binding range of 262-365 months’ imprisonment. The district court (Hall, /.) resentenced both Burden and Buchanan to 365 months’ imprisonment and to life terms of supervised release.

On appeal, both defendants argue that the district court erred in (1) failing to advise them before accepting their stipulations that they faced terms of supervised release and (2) imposing life terms of supervised release without adequate explanation. The government asserts that the defendants waived their right to appeal in the resentencing stipulations. We hold that the appeal waivers are enforceable, but we construe them narrowly so as not to encompass the defendants’ appeals of their terms of supervised release. On the merits, we decline to resolve whether the district court erred in failing to advise the defendants that they faced terms of supervised release, because even assuming that it did, the error was not plain. Plain error was committed, however, when the district court implicitly hinged the defendants’ life terms of supervised release on the need for retribution—an imperative that is relevant to fashioning a term of incarceration, but not to fashioning a term of supervised release.

Accordingly, we VACATE the defendants’ terms of supervised release, RE[49] MAND for resentencing as to supervised release, and AFFIRM the judgments in all other respects.

Background

From 1997 to 2001, Kelvin. Burden and Jermaine Buchanan (among others) participated in a cocaine trafficking conspiracy, operated out of Norwalk, Connecticut. Burden supervised the conspiracy and Buchanan was heavily involved. In 2003, a jury convicted both men of, among other things, racketeering, in violation of 18 U.S.C. § 1962(c); violent crimes in aid of racketeering (“VCAR”), including conspiracy to murder, attempted murder, and, in the case of Burden, murder, all in violation of 18 U.S.C. § 1959(a); and conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base and five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A).

Burden faced a mandatory minimum sentence of life imprisonment on the VCAR murder count (Count Eight) and, in light of his prior felony drug convictions, on the drug conspiracy count (Count Twelve). Accordingly, in November 2003, the district court sentenced Burden principally to life imprisonment. Buchanan did not face a statutory mandatory minimum of life imprisonment, but the then-mandatory Guidelines called for a term of life imprisonment. In April 2004, the district court sentenced Buchanan principally to life imprisonment.

About a decade later, after exhausting their direct appeals, both men brought ha-beas petitions to vacate their convictions on the basis of undisclosed Brady evidence—namely, contemporaneous benefits to a key cooperator—and the partial recantation of the same cooperator. The government opposed the motions. In October 2014, without conceding their positions, the defendants entered into separate resen-tencing stipulations with the government to resolve their pending habeas petitions.

Pursuant to Burden’s stipulation, Burden agreed to amend his § 2255 petition to withdraw his request for a new trial and to replace it with a request to vacate his VCAR murder conviction on Count Eight of the operative indictment. The government, in turn, agreed that the district court should grant such relief and that the district court should vacate the judgment and conduct a full resentencing as to the remaining counts of conviction. The stipulation also provided that the government would rely on only one of Burden’s prior drug offenses at resentencing, with the result that Count Twelve (the drug conspiracy) would carry a mandatory minimum sentence of 20 years rather than life.1 The parties further stipulated to a binding Guidelines range of 262-365 months’ incarceration.2 The stipulation provided that, “if the Court accepts the agreement, [the Court] will be bound to impose an incarceration term within the range of 262-365 months.” Burden App. 461. If, on the other hand, the district court did not accept the stipulation, the stipulation would be void and the parties would continue litigating the § 2255 petition.

Buchanan’s stipulation with the government operated similarly, with the parties agreeing that Buchanan would amend his § 2255 petition to withdraw his request for a new trial in favor of a request to vacate the jury’s finding as to Act of Rack[50] eteering 4 (murder) of Count One of the operative indictment. As with Burden’s stipulation, Buchanan and the government stipulated that the district court, if it were to accept the stipulation, would conduct a full resentencing based on a binding Guidelines range of 262-365 months’ incarceration.3

Finally, both stipulations contained identical appeal waivers:

[I]f the Court adopts this stipulation and imposes an incarceration term within the agreed-upon guideline range of 262-365 months’ incarceration, the petitioner waives and gives up his right to appeal and/or collaterally attack any alleged error in connection with the resentencing itself and waives and gives up any right to raise any claim on direct appeal or collateral attack related to his remaining, underlying convictions or anything that occurred in this case prior to the re-sentencing itself....

Burden App. 459; Buchanan App. 194-95.

Neither stipulation mentioned supervised release.

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United States v. Burden, 860 F.3d 45, 2017 U.S. App. LEXIS 10746, 2017 WL 2621661 (2d Cir. 2017).

860 F.3d 45 (United States v. Burden) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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