United States v. Burke

277 F. Supp. 3d 38
CourtDistrict Court, District of Columbia
DecidedSeptember 29, 2017
DocketCrim. Action No. 13-0119-3 (ABJ)
StatusPublished

This text of 277 F. Supp. 3d 38 (United States v. Burke) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Burke, 277 F. Supp. 3d 38 (D.D.C. 2017).

Opinion

MEMORANDUM OPINION & ORDER

AMY BERMAN JACKSON, United States District Judge

On April 2, 2014, defendant Dennis Burke was sentenced to seventy-two months of incarceration after his plea of guilty to conspiracy to distribute and possess with intent to distribute five hundred grams or more of cocaine and 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841, 846. See J. in a Criminal Case [Dkt. # 175] (“J&C”). He now files a motion asking the Court to reduce his sentence in light of a recent amendment to the U.S. Sentencing Guidelines that he asserts would result in a two-level decrease in his total offense level. Mot. for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) and in Conjunction with, the Minus Two Drug Amendment 782 [Dkt. # 241] (“Def.’s Mot.”) at 3. Since the Court and the defendant were aware of the potential change to the Guidelines at the time of defendant’s sentencing, and the sentence imposed fell below the range that would become effective when the Guidelines were amended, the motion will be denied.

Defendant Burke correctly points out that the U.S. Sentencing Commission amended the sentencing guidelines applicable to drug offenses in November of 2014, when it reduced -the offense level that corresponded to each quantity listed in the Drug Quantity Table used for calculating base offense levels in controlled substance offenses by two levels. U.S.S.G. Supp, to App’x C, Amendment 782 (effective Nov. 1, 2014); United States v. Jones, 846 F.3d 366, 368 (D.C. Cir. 2017) (describing the amendment as “working] an across-the-board reduction in the offense levels for most drug crimes”). In his plea, the defendant admitted that he was personally accountable for at least 196 but less than 280 grams of cocaine base, and at the time, that corresponded to a base offense level of 32. Plea Agreement [Dkt. # 138] at 4. As defendant notes, “recalculation of petitioner’s total offense level under the present amended Guidelines would result in a two (2) level decrease of the total offense level.” Def.’s Mot. at-3.1

Defendant Burke is also correct when he reminds the Court that 18 U.S.C. § 3582(c)(2) provides:

in the case of a defendant who has been sentenced. to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C,. 994(o), upon motion of the defendant ..., the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a [40]*40reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).

When considering a request under this provision, the Court must analyze defendant’s request in accordance with the “two-step inquiry” established in Dillon v. United States, 560 U.S. 817, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Under this procedure, the Court must first decide if defendant is eligible for a sentence reduction under § 3582(c)(2) and then decide whether such a reduction is warranted according to the factors set forth 18 U.S.C. § 3553(a). Dillon, 560 U.S. at 827, 130 S.Ct. 2683; Jones, 846 F.3d at 368.

But the Court is not persuaded that defendant is eligible for a sentence reduction under section 3582(c)(2), and it finds that a reduction would not be warranted since the sentence fell below even the reduced sentencing Guideline range, and the sentence continues to be appropriate based on an evaluation of all of the statutory factors.

The sentence imposed in this case was agreed to by the parties as part of a plea agreement submitted to the Court under Federal Rule of Criminal Procedure 11(c)(1)(C). Plea Agreement at 4. The original indictment charged an offense that would have triggered a mandatory minimum sentence of ten years, and the parties agreed that the defendant would plead to a charge in a superseding information that required a mandatory minimum sentence of at least 60 months. The plea agreement setting the sentence at 72 months was negotiated before the United States had implemented what became its policy to give defendants the benefit of the amendment before it was formally adopted. Therefore, as part of the Court’s colloquy at sentencing to determine whether it should accept the plea and the sentence, the pending amendment was discussed.

Counsel for defendant Burke made it clear that the defendant had been notified of the amendment under consideration. He explained that the agreed sentence being proposed under Rule 11(c)(1)(C) was not only lower than what the current Guidelines would recommend, but that it was lower than what the Guidelines would call for after they were amended, and that the defendant was not seeking to withdraw his plea or to ask the Court to reject the agreed-upon sentence.

MR. BALAREZO: I have made Mr. Burke aware of the following, that the plea agreement that we negotiated with the Government was negotiated prior to the Department of Justice’s new sentencing policies with respect to drug cases and the two-level reduction, and what I informed him was that that is the Government’s policy now and that there was a possibility that if the plea agreement was not an 11(c)(1)(C) type plea, that his guideline level could have possibly been reduced by two levels. Even if that were the case, the 11(c)(1)(C) of 72 months is below the guideline-level range.
But my concern, as I explained it to him, was that the reduction that he gets—I would say the relative percentage reduction that he gets from the 11(c)(1)(C) with respect to his higher guideline level is greater than that if the guideline were reduced by two levels and the sentence is still 60 months.2
[41]*41[[Image here]]
THE COURT: I understand what you are saying. In either case, the sentence you’ve agreed to is lower than what the guideline range would be.
MR. BALAREZO: Right.
[[Image here]]
MR. BALAREZO: ... I have spoken with the Government. The Government has indicated that it is not willing to modify or change the plea agreement as it stands. I have informed Mr. Burke of that, and he says that he is willing to go forward with sentencing.
THE COURT: Okay.
MR. BALAREZO: So I just raise that so the Court is aware that Mr. Burke is fully aware of what his rights are.

Tr. of Sentencing Hr’g [Dkt. # 242] (“Hr’g Tr.”) at 3-5.

Following this discussion, the Court calculated defendant’s offence level under the then-applicable Guidelines. •

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Related

Dillon v. United States
560 U.S. 817 (Supreme Court, 2010)
United States v. James Jones
846 F.3d 366 (D.C. Circuit, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
277 F. Supp. 3d 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-burke-dcd-2017.