United States v. Burns

577 F.3d 887, 2009 U.S. App. LEXIS 18827, 2009 WL 2525585
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 20, 2009
Docket04-2901, 04-2933
StatusPublished
Cited by59 cases

This text of 577 F.3d 887 (United States v. Burns) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Burns, 577 F.3d 887, 2009 U.S. App. LEXIS 18827, 2009 WL 2525585 (8th Cir. 2009).

Opinions

WOLLMAN, Circuit Judge.

This case is once again before our court, this time by virtue of a remand from the Supreme Court for reconsideration of our en banc opinion in light of Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). See Burns v. United States, — U.S. —, 128 S.Ct. 1091, 169 L.Ed.2d 804 (2008). Having completed our reconsideration, we now affirm.

I.

Background

As set forth in our initial review of this case, United States v. Burns, 438 F.3d 826 (8th Cir.2006) (Bums I), Travis Ray Burns was indicted on one count of conspiracy to manufacture and distribute fifty grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Burns was subject to a mandatory life sentence under the enhanced penalty provided by 21 U.S.C. § 851. Absent the § 851 enhancement, Burns faced a sentencing range of 188 to 235 months’ imprisonment. In return for Burns’s cooperation, the government agreed to move for a downward departure under United States Sentencing Guidelines § 5K1.1 and 18 U.S.C. § 3553(e).1

The government advised the district court2 at sentencing that Burns had immediately admitted his involvement in the conspiracy and provided detailed information during two separate debriefing sessions regarding the several groups that were involved in manufacturing methamphetamine. Burns twice testified before the grand jury and provided information in several ongoing investigations. His cooperation assisted the government in establishing drug quantity evidence against one defendant, Brad Messerly, and he was a key witness against Victor DeFoe, which enabled the government to obtain an indictment against and secure a plea of guilty from DeFoe. The government characterized Burns’s cooperation as timely, truthful, and complete, and recommended a 15 percent reduction from the otherwise applicable 360-month sentence. Bums I, 438 F.3d at 827-28.

The district court rejected the government’s recommendation and imposed a [890]*890sentence of 144 months’ imprisonment, which reflected a 60 percent reduction from the 360-month sentence. Id. at 828. We set forth at length the district court’s explanation of its considerations of the § 5K1.1 factors:

I’m going to use 360 months as a starting point. In this case I specifically find under the 5K1.1 factors, factor number 5, the timeliness of the defendant’s assistance, the defendant was exceptionally timely in this case. My understanding is he started cooperating as soon as he was arrested. To me that’s exceptional timeliness. While some defendants start that early, virtually no defendants start earlier than that....
So I find that his timeliness was exceptional and apparently started cooperating before he was advised of the impact of the United States Sentencing Guidelines, before he knew anything about how the guidelines might affect his sentence, before he exercised his Sixth Amendment right to have counsel present. So I think in this case the fifth factor weighs very heavily in favor of the defendant ...
Number 4 does not apply, any injury suffered or danger of risk because I haven’t heard anything about that. Number 3, the nature and extent of the defendant’s assistance, in this case based on the representations of the assistant U.S. attorney, I find that the defendant provided every single bit of information he knew, so you couldn’t — the extent of the defendant’s assistance could not be greater in the sense that he provided all of the information he knew.
Now, it’s true that some defendants have greater information which leads to indictments of more people. But I don’t think that’s necessarily the test. I think the test is did the defendant provide substantial assistance on everything he knew, and in this case he did. So the defendant scores very highly on the third prong.
Defendant scores very highly on the second prong, truthfulness, completeness, and reliability of the information. There’s no information that the defendant’s substantial assistance was anything but a hundred percent complete, a hundred percent truthful, and a hundred percent reliable. So Mr. Burns scores very highly on the second prong.
On — the first prong is the Court’s evaluation of significance and usefulness of the defendant’s usefulness taking into consideration the government’s evaluation of the assistance rendered. Here the government has indicated that the defendant testified twice in front of the grand jury, that he established the drug quantity on one defendant and led to the indictment and guilty plea of another defendant. I find that that was both very significant and very useful.
Now for some reason which the government refuses to disclose, they only recommend 15 percent, but they won’t tell me why they only recommend 15 percent. And the government refuses to indicate how any one of the five 5K1.1 factors affect the 15 percent recommendation.
So while I do take into consideration the government’s evaluation of the significance and usefulness, it’s hard to put any weight on the 15 percent recommendation because the government refuses to disclose how they arrive at that recommendation.
And looking back on the other sentencings that I’ve had, that recommendation is in my view substantially lower than other recommendations the government has made for similarly situated defendants.
Having said all that, I have the independent right under 5K1.1 to evaluate the [891]*891substantial assistance based on the 5K1 factors as I see it.
Having taken into consideration the fact that the defendant scores very, very highly on the second factor, the third factor, and the fifth factor, I’m going to reduce the defendant’s sentence substantially beyond what the government recommends in this case. That ought to come as no surprise to the government because I have a ten-year history of doing that because I just evaluate the five factors differently than-than how the government does, and the government refuses to disclose how they do it to me.

Id. at 828-29 (quoting Sent. Tr. at 12-15).

The government appealed the sentence, contending that the district court had ignored its recommendation of a 15 percent reduction and that the 60 percent reduction was excessive in light of the assistance Burns had provided. Burns cross-appealed, contending that the district court should have departed from the 188 to 235-month guideline range rather than from the 360-month presumptive life sentence. Id. at 829.

A divided panel of this court affirmed the downward departure awarded by the district court and unanimously affirmed the district court’s use of the 360-month presumptive life sentence as its departure point. Id. at 831.

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Bluebook (online)
577 F.3d 887, 2009 U.S. App. LEXIS 18827, 2009 WL 2525585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-burns-ca8-2009.