15‐3610‐cr United States v. Burrell
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of December, two thousand sixteen.
PRESENT: JOHN M. WALKER, Jr., DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
UNITED STATES OF AMERICA, Appellee,
v. 15‐3610‐cr
STANLEY BURRELL, Defendant‐Appellant,
ARTURO BROWN, a/k/a Rambo, HOWARD MIDGETTE, a/k/a How Bow, DARRYL BANKS, a/k/a Pop, MICHELLE MILES, BRIAN BURRELL, a/k/a B‐Wop, Defendants.
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FOR APPELLEE: MICHAEL P. ROBOTTI, Assistant United States Attorney (Emily Berger, Assistant United States Attorney, on the brief), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, New York.
FOR DEFENDANT‐APPELLANT: THOMAS H. NOOTER, Freeman Nooter & Ginsberg, New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Dearie, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the orders of the district court are AFFIRMED.
Following a jury trial in 1999, defendant‐appellant Stanley Burrell was
convicted of engaging in a continuing criminal enterprise (ʺCCEʺ) and conspiring to
distribute and possess heroin and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
846, and 848. Burrell appeals the district courtʹs denials of his motions for a sentence
reduction and for reconsideration. The district court explained its reasoning in orders
entered August 28, 2015 and November 2, 2015. We assume the partiesʹ familiarity with
the underlying facts, procedural history, and issues on appeal.
On March 24, 2000, the district court (Nickerson, J.) held a sentencing
hearing at which Burrell, through defense counsel, asserted that the Government
overestimated the applicable quantity of crack cocaine. Burrell claimed that the
Governmentʹs estimate of 70 kilograms was grossly overstated and that he was
‐ 2 ‐
responsible for less than 1.5 kilograms, the threshold under which his offense level
would be reduced by two points and would result in a lower sentencing range of 360
months to life imprisonment. The court rejected Burrellʹs argument and found that the
total offense level was 44, which ʺrequire[d it] to impose a sentence of life
imprisonment.ʺ App. at 52, 57. While the district court did not make a specific finding
as to drug quantity at the hearing, it clearly accepted the Governmentʹs contention that
many multiples of the threshold of 1.5 kilograms were involved. Moreover, the
presentence report specifically found that Burrell was responsible for ʺa conservative
estimate of over 61.54 kilograms of crack‐cocaine, as well as 1.38 kilograms of heroin.ʺ
Finally, the court entered a written judgment that (1) stated ʺ[t]he court adopts the
factual findings and guideline application in the presentence report,ʺ (2) identified the
total offense level as 44, and (3) reflected a sentence of two concurrent terms of life
imprisonment. Govʹt App. at 9‐12.
On April 8, 2005, the district court (Dearie, J.) amended the judgment to
reflect the dismissal of the conspiracy conviction, pursuant to the Second Circuitʹs order
in Burrellʹs first appeal, and to re‐impose a sentence of life imprisonment on the
remaining CCE count.
On May 25, 2012, the district court denied Burrellʹs first motion to reduce
his sentence under 18 U.S.C. § 3582(c)(2) because the ʺconservative estimate of 61.54
kilograms of crack cocaine attributed to defendantʺ at the initial sentencing exceeded 8.4
‐ 3 ‐
kilograms, the threshold amount, as amended in 2007 and again in 2010, for a
mandatory term of life imprisonment. App. at 64. In doing so, the district court found
that, while the sentencing court did not specifically determine the drug quantity or
expressly adopt the findings in the presentence report at the sentencing hearing, ʺthe
sentencing transcript confirms that the sentencing Court unequivocally found that
defendant was responsible for far more than 8.4 kilograms of crack.ʺ Id. The district
court also found the sentencing court had made ʺspecific affirmative factual findingsʺ as
to the quantity of drugs. App. at 65.1
On August 25, 2015, the district court denied Burrellʹs second motion, filed
pro se, to reduce his sentence pursuant to § 3582(c)(2) and Amendment 782 to the
Sentencing Guidelines because ʺJudge Nickerson held Mr. Burrell accountable for the
distribution of 61.54 grams of crack cocaine,ʺ which again exceeded the threshold
amount, as amended in 2014, of 25.2 kilograms. App. at 69. Burrell then filed a pro se
motion for reconsideration, arguing that he never received a copy of the Governmentʹs
opposition briefing and thus had no opportunity to respond to its arguments. The
district court instructed the Government to send Burrell a copy of its submission and
allowed him to file supplemental briefing.
On November 2, 2015, the district court denied Burrellʹs motion for
reconsideration because (1) the sentencing court specifically found Burrell responsible
1 The district courtʹs May 25, 2012 order is not directly the subject of this appeal.
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for 61.54 kilograms, which was over the 25.2 kilogram threshold, and expressly adopted
the findings and Guidelines application in the presentence report, and (2) Burrell could
not raise a new argument ‐‐ that the sentencing court failed to state explicitly at the
sentencing hearing that it was relying upon the presentence reportʹs calculations ‐‐ for
the first time in a reply brief or motion for reconsideration.
Burrell claims on appeal that the district court committed clear error in
denying his motions under § 3582 and Amendment 782 based on its improper
conclusion that the sentencing court found him specifically responsible for 61.54
kilograms. He seeks to have the matter remanded for resentencing within a Guidelines
range of 360 months to life imprisonment or, in the alternative, for an evidentiary
hearing as to whether his sentence can be reduced pursuant to Amendment 782 and its
25.2 kilogram threshold.
Under 18 U.S.C. § 3582(c)(2), a court may reduce a sentence ʺbased on a
sentencing range that has subsequently been lowered by the Sentencing Commission.ʺ
The current version of the Guidelines provides that 8.4 kilograms of cocaine base
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15‐3610‐cr United States v. Burrell
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of December, two thousand sixteen.
PRESENT: JOHN M. WALKER, Jr., DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
UNITED STATES OF AMERICA, Appellee,
v. 15‐3610‐cr
STANLEY BURRELL, Defendant‐Appellant,
ARTURO BROWN, a/k/a Rambo, HOWARD MIDGETTE, a/k/a How Bow, DARRYL BANKS, a/k/a Pop, MICHELLE MILES, BRIAN BURRELL, a/k/a B‐Wop, Defendants.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR APPELLEE: MICHAEL P. ROBOTTI, Assistant United States Attorney (Emily Berger, Assistant United States Attorney, on the brief), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, New York.
FOR DEFENDANT‐APPELLANT: THOMAS H. NOOTER, Freeman Nooter & Ginsberg, New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Dearie, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the orders of the district court are AFFIRMED.
Following a jury trial in 1999, defendant‐appellant Stanley Burrell was
convicted of engaging in a continuing criminal enterprise (ʺCCEʺ) and conspiring to
distribute and possess heroin and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
846, and 848. Burrell appeals the district courtʹs denials of his motions for a sentence
reduction and for reconsideration. The district court explained its reasoning in orders
entered August 28, 2015 and November 2, 2015. We assume the partiesʹ familiarity with
the underlying facts, procedural history, and issues on appeal.
On March 24, 2000, the district court (Nickerson, J.) held a sentencing
hearing at which Burrell, through defense counsel, asserted that the Government
overestimated the applicable quantity of crack cocaine. Burrell claimed that the
Governmentʹs estimate of 70 kilograms was grossly overstated and that he was
‐ 2 ‐
responsible for less than 1.5 kilograms, the threshold under which his offense level
would be reduced by two points and would result in a lower sentencing range of 360
months to life imprisonment. The court rejected Burrellʹs argument and found that the
total offense level was 44, which ʺrequire[d it] to impose a sentence of life
imprisonment.ʺ App. at 52, 57. While the district court did not make a specific finding
as to drug quantity at the hearing, it clearly accepted the Governmentʹs contention that
many multiples of the threshold of 1.5 kilograms were involved. Moreover, the
presentence report specifically found that Burrell was responsible for ʺa conservative
estimate of over 61.54 kilograms of crack‐cocaine, as well as 1.38 kilograms of heroin.ʺ
Finally, the court entered a written judgment that (1) stated ʺ[t]he court adopts the
factual findings and guideline application in the presentence report,ʺ (2) identified the
total offense level as 44, and (3) reflected a sentence of two concurrent terms of life
imprisonment. Govʹt App. at 9‐12.
On April 8, 2005, the district court (Dearie, J.) amended the judgment to
reflect the dismissal of the conspiracy conviction, pursuant to the Second Circuitʹs order
in Burrellʹs first appeal, and to re‐impose a sentence of life imprisonment on the
remaining CCE count.
On May 25, 2012, the district court denied Burrellʹs first motion to reduce
his sentence under 18 U.S.C. § 3582(c)(2) because the ʺconservative estimate of 61.54
kilograms of crack cocaine attributed to defendantʺ at the initial sentencing exceeded 8.4
‐ 3 ‐
kilograms, the threshold amount, as amended in 2007 and again in 2010, for a
mandatory term of life imprisonment. App. at 64. In doing so, the district court found
that, while the sentencing court did not specifically determine the drug quantity or
expressly adopt the findings in the presentence report at the sentencing hearing, ʺthe
sentencing transcript confirms that the sentencing Court unequivocally found that
defendant was responsible for far more than 8.4 kilograms of crack.ʺ Id. The district
court also found the sentencing court had made ʺspecific affirmative factual findingsʺ as
to the quantity of drugs. App. at 65.1
On August 25, 2015, the district court denied Burrellʹs second motion, filed
pro se, to reduce his sentence pursuant to § 3582(c)(2) and Amendment 782 to the
Sentencing Guidelines because ʺJudge Nickerson held Mr. Burrell accountable for the
distribution of 61.54 grams of crack cocaine,ʺ which again exceeded the threshold
amount, as amended in 2014, of 25.2 kilograms. App. at 69. Burrell then filed a pro se
motion for reconsideration, arguing that he never received a copy of the Governmentʹs
opposition briefing and thus had no opportunity to respond to its arguments. The
district court instructed the Government to send Burrell a copy of its submission and
allowed him to file supplemental briefing.
On November 2, 2015, the district court denied Burrellʹs motion for
reconsideration because (1) the sentencing court specifically found Burrell responsible
1 The district courtʹs May 25, 2012 order is not directly the subject of this appeal.
‐ 4 ‐
for 61.54 kilograms, which was over the 25.2 kilogram threshold, and expressly adopted
the findings and Guidelines application in the presentence report, and (2) Burrell could
not raise a new argument ‐‐ that the sentencing court failed to state explicitly at the
sentencing hearing that it was relying upon the presentence reportʹs calculations ‐‐ for
the first time in a reply brief or motion for reconsideration.
Burrell claims on appeal that the district court committed clear error in
denying his motions under § 3582 and Amendment 782 based on its improper
conclusion that the sentencing court found him specifically responsible for 61.54
kilograms. He seeks to have the matter remanded for resentencing within a Guidelines
range of 360 months to life imprisonment or, in the alternative, for an evidentiary
hearing as to whether his sentence can be reduced pursuant to Amendment 782 and its
25.2 kilogram threshold.
Under 18 U.S.C. § 3582(c)(2), a court may reduce a sentence ʺbased on a
sentencing range that has subsequently been lowered by the Sentencing Commission.ʺ
The current version of the Guidelines provides that 8.4 kilograms of cocaine base
corresponds to a base offense level of 36, and 25.2 kilograms of cocaine base
corresponds to a base offense level of 38. U.S.S.G. § 2D1.1(c)(1)‐(2).
ʺ[W]e review a district courtʹs decision to deny a motion [for sentence
reduction] under 18 U.S.C. § 3582(c)(2) for abuse of discretion.ʺ United States v. Rios, 765
F.3d 133, 137 (2d Cir. 2014) (alteration in original) (quoting United States v. Borden, 564
‐ 5 ‐
F.3d 100, 104 (2d Cir. 2009)). ʺ[A] district court has abused its discretion if it based its
ruling on an erroneous view of the law or on a clearly erroneous assessment of the
evidence, or rendered a decision that cannot be located within the range of permissible
decisions.ʺ Id. (quoting Borden, 564 F.3d at 104). The determination of drug quantity is
a finding of fact, United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006), which we review
for clear error, United States v. Kent, 821 F.3d 362, 368 (2d Cir. 2016). ʺTo reject a finding
of fact as clearly erroneous, we must, upon review of the entire record, be ʹleft with the
definite and firm conviction that a mistake has been committed.ʹʺ Snow, 462 F.3d at 72
(quoting United States v. Garcia, 413 F.3d 201, 222 (2d Cir. 2005)).
The district court did not abuse its discretion in denying Burrellʹs motions
for a sentence reduction and for reconsideration. The sentencing court satisfied its
obligation to make a specific factual finding as to drug quantity, and that finding was
not clearly erroneous. The presentence report and its first and second addenda
concluded that, based on the information provided by the Government, Burrell was
responsible for 61.54 kilograms of crack cocaine. The Government filed a letter
identifying the quantity as 70.874 kilograms and explaining its calculations in detail.
Burrell argued at the sentencing hearing that the trial evidence supported an amount of
less than 1.5 kilograms, which entitled him to a two‐level reduction, and challenged the
70 kilogram estimate as overstating the quantity by forty times the 1.5 kilogram
threshold. The Government explained the assumptions and calculations underlying its
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ʺvery conservative estimate.ʺ App. at 48. At the sentencing hearing, the district court
rejected Burrellʹs objections and accepted the Guidelines calculation urged by the
Government. And in the end, the court expressly adopted the presentence reportʹs
finding of 61.54 kilograms by marking the space next to the statement, ʺThe court
adopts the factual findings and guideline application in the presentence report,ʺ in the
Statement of Reasons in the written judgment. Govʹt App. at 12. Accordingly, the court
made a specific factual finding that Burrell was responsible for 61.54 kilograms of crack
cocaine. See United States v. Molina, 356 F.3d 269, 275‐76 (2d Cir. 2004) (citations
omitted) (ʺA district court satisfies its obligation to make the requisite specific factual
findings when it explicitly adopts the factual findings set forth in the presentence report
. . . either at the sentencing hearing or in the written judgment it files later.ʺ). That
finding was supported by the record.
We have considered all of Burrellʹs additional arguments and find them to
be without merit. For the reasons stated herein, the orders of the district court are
AFFIRMED.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk
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