United States v. Burnett , 309 F. App'x 646 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-9-2009
USA v. Burnett
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2403
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2403
_____________
UNITED STATES OF AMERICA,
v.
JOSEPH BURNETT,
a/k/a
JOHN JONES
Joseph Burnett,
Appellant
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 01-cr-0005-1)
District Judge: Honorable Sylvia H. Rambo
_______________
Submitted Under Third Circuit LAR 34.1(a)
February 2, 2009
Before: RENDELL, JORDAN and ROTH, Circuit Judges,
(Filed: February 09, 2009 )
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Defendant Joseph Burnett appeals a District Court order denying his motion for a
sentence reduction under the United States Sentencing Commission’s recent amendment
to the Guidelines ranges for crack cocaine offenses. Because the District Court’s decision
to deny Burnett’s motion was an appropriate exercise of its discretion, we will affirm its
order.
I. Background
On March 12, 2001, Burnett pled guilty to distribution of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of drug
trafficking, in violation of 18 U.S.C. § 924(c). He was sentenced, on August 29, 2001, to
ninety-seven months in prison: thirty-seven months for the drug charge and sixty months
for the weapons charge. On February 14, 2003, the District Court, upon the government’s
motion, recognized Burnett’s substantial assistance to the government and reduced his
prison sentence to seventy-eight months, pursuant to Federal Rule of Criminal Procedure
35(b). On November 1, 2007, Burnett escaped from the Capitol Pavilion Community
Corrections Center. He was arrested and, on February 20, 2008, pled guilty to escape, in
violation of 18 U.S.C. §751(a).
2
While awaiting his sentence for escape,1 Burnett brought a motion before the
District Court requesting that his sentence for distributing crack cocaine be reduced based
on the recent amendment to the Sentencing Guidelines for crack cocaine offenses. On
May 2, 2008, the District Court issued an order denying Burnett’s motion for a sentence
reduction. The District Court reasoned that: “Defendant plead[ed] guilty to escape on
February 20, 2008. That plea, along with institutional incident reports, shows that
Defendant presents a public safety factor and is not deserving of a reduction.” (App. 3.)
Burnett filed a timely notice of appeal and argues that the District Court erred in denying
his motion for a sentence reduction.
II. Discussion 2
Effective November 1, 2007, the United States Sentencing Commission adopted
Amendment 706, which generally decreased by two levels the base offense levels for
crack cocaine offenses. See United States v. Wise, 515 F.3d 207, 220 (3rd Cir. 2008). A
defendant who was sentenced on a crack cocain offense before Amendment 706 took
effect can bring a motion in the district court requesting that his sentence be reduced
pursuant to 18 U.S.C. § 3582(c)(2).
1The District Court eventually sentenced Burnett to thirty-seven months
imprisonment for escape, to run consecutively with the time remaining on his sentence for
the drug and weapons convictions.
2 The District Court had jurisdiction to review Burnett’s motion for modification
of his sentence under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.
3
Congress has provided district courts with the discretion to reduce sentences that
are based on sentencing ranges that are subsequently lowered by the Sentencing
Commission:
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 or the Director of the Bureau of Prisons, or on its
own motion, 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 reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2) (emphasis added).3 The Sentencing Guidelines provide three
factors for consideration in deciding whether to exercise that discretion to reduce a
sentence under § 3582(c)(2). U.S.S.G. § 1B1.10, n.1(B). First, the court should consider
the 18 U.S.C. § 3553 (a) factors. Id. at n.1(B)(i). Second, it should take into account
public safety considerations. Id. at n.1(B)(ii). Specifically, the Commentary to the
3We review de novo a district court's interpretation of the Sentencing Guidelines.
United States v. Wood, 526 F.3d 82, 85 (3d Cir. 2008). Although we have not explicitly
set forth the applicable standard of review of a district court’s decision to grant or deny a
sentence modification pursuant to 18 U.S.C. § 3582(a)(2), circuits which have considered
the issue apply an abuse of discretion standard. United States v. Carter, 500 F.3d 486,
490 (6th Cir. 2007); United States v. Rodriguez-Pena, 470 F.3d 431, 432 (1st Cir. 2006).
Courts which have considered the interplay between the career offender provisions of the
Guidelines and the recent amendments to the crack cocaine ranges have applied a de novo
standard of review to the district court’s interpretation of the impact of the amendments
on the Sentencing Guidelines and an abuse of discretion standard to the court’s
determination of whether to grant a particular defendant’s motion for a sentence
modification under those amendments. United States v. Sharkey, 543 F.3d 1236, 1238-39
(10th Cir. 2008); United States v. Moore, 541 F.3d 1323, 1327 (11th Cir. 2008). We will
do the same.
4
Guidelines directs that “[t]he court shall consider the nature and seriousness of the danger
to any person or the community that may be posed by a reduction in the defendant’s term
of imprisonment... .” Id. And third, the court should consider a defendant’s post-
sentence conduct. Id. at n.1(B)(iii).
The District Court considered the evidence before it – evidence that included
prison incident reports and Burnett’s guilty plea to the crime of escape – and concluded
that Burnett presented a public safety risk and did not deserve to have his sentence
reduced. The District Court thus had a proper legal and factual basis for its decision.
There was no abuse of discretion.
III. Conclusion
Because the District Court’s decision to deny Burnett’s motion was an appropriate
exercise of its discretion, we will affirm its order denying a reduction in Burnett’s
sentence.
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