United States v. Burnam , 192 F. App'x 103 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-17-2006
USA v. Burnam
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2173
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2173
UNITED STATES OF AMERICA
v.
KENNETH BURNAM
a/k/a “KB”
a/k/a VICTOR JR. RICHARDSON
a/k/a VENTON EUGENE SMITH
Kenneth Burnam,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 99-cr-00205-01)
District Judge: Hon. William W. Caldwell
Submitted under Third Circuit LAR 34.1(a)
March 7, 2006
BEFORE: GREENBERG and ROTH*, Circuit Judges, and
BUCKWALTER**, District Judge
(Filed: August 17, 2006)
*Judge Roth assumed senior status on May 31, 2006.
**Honorable Ronald L. Buckwalter, Senior Judge of the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
BUCKWALTER, Senior District Judge.
This is an appeal which initially raises the issue stated by Appellant as
follows:
Whether this Honorable Court has jurisdiction over this appeal from
a Rule 35(b) order under the broader statute at 28 U.S.C. § 1291
pertaining to final orders of District Court as well as the more
narrow statute 18 U.S.C. § 3742(a) governing appeals from
judgment of sentence?
This court, in a footnote in U.S. v. Cooper, 437 F.3d 324, 327 (3d Cir.
2006) suggests that jurisdiction might be found in both. A portion of that note follows:
Although we rely solely on 18 U.S.C. § 3742(a)(1) as the basis for
our jurisdiction to review for reasonableness, we note there also
might be jurisdiction under 28 U.S.C. § 1291. This Court has
regularly taken jurisdiction over sentencing appeals under both
statutes. See, e.g., United States v. Graham, 72 F.3d 352, 358 n. 8
(3d Cir. 1995) (“[W]e believe our jurisdiction to review
[defendant’s] sentence lies pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a)(1) because [defendant] has alleged that his
sentence was imposed in violation of law, that is, in violation of his
constitutional rights.”); United States v. King, 21 F.3d 1302, 1304
(3d Cir. 1994) (“We have jurisdiction over [defendant’s] appeal
from the district court’s judgment of sentence pursuant to 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291.”).
Clearly, however, this court does not have jurisdiction to review the district
court’s exercise of discretion regarding whether or by how much to grant a downward
departure or the extent of the departure. See Cooper, supra, at p. 332, 333.
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Next, Appellant argues notwithstanding the lack of jurisdiction with regard
to the court’s exercise of discretion that the sentence was imposed in violation of law and
it was plainly unreasonable. § 3742(a)(1)(4).
First, Appellant claims that the district court went far beyond the scope of
his undisputed substantial assistance by taking into account other matters such as his
presentence report in refusing to grant him a meaningful reduction.1 This is nothing more
than an argument about the court’s exercise of its discretion over which we have no
jurisdiction.
Second, Appellant claims the district court met secretly with the probation
officer and reconsidered a four-year old, inaccurate presentence report.
Finally, since his original sentence imposed on October 13, 2000 was
enhanced by a judge and not a jury, it was imposed in violation of Blakely v.
Washington, 124 S. Ct. 2531 (2004). Appellant’s direct appeal from that sentence was
denied and the judgment of sentence affirmed on July 16, 2001 (see 265 F.3d 1057 (3d
Cir. 2001 (table)).
With regard to the second claim above, the record reveals that the district
court sentenced Appellant on October 13, 2000. About 3 ½ years later, on April 20,
2004, the same district court held a hearing on the Rule 35 motion filed by the
1. Rule 35(b) does not in any way limit what factors the court may consider as to ruling
against a reduction in sentence. What it does say is the factor the court may consider in
favor of a sentence reduction; namely, substantial assistance in investigating or
prosecuting another person.
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government. At that hearing, the court received the testimony of a DEA agent who
explained the assistance Appellant provided to the DEA. The Appellant, called as a
witness by his counsel, testified and asked that in addition to a downward departure, he
receive an evaluation for the 500-hour drug program (App. 121). He also testified that he
would continue to assist the government and conceivably ask the government to file
another Rule 35 motion (See 124a).
At the conclusion of testimony but before determining the departure, the
district court said:
THE COURT: Okay. As we’re all aware, it’s been four years, I
guess, since I dealt with this sentencing. I have gone through the
pre-sentence report. I would like an opportunity to consult with Mr.
Vought who was the writer of the pre-sentence report. So we’re
going to take a 15 minute recess at this time and then we’ll
reconvene.
THE CLERK: Court is in recess for 15 minutes.
(Recess was taken from 10:13 a.m. to 10:28 a.m.)
No objection was made to this consultation. The court obviously wanted to review the
background of the case before determining what, if any, reduction to give Appellant.
Clearly, this is not plain error.2
2. In United States v. Aspinall, 389 F.3d 332, 348-349 (2nd Cir. 2004), the court referred
to the probation department as follows:
. . . the Probation Department is an arm of the court. See, e.g., United States v.
Reyes, 283 F.3d 446, 455 (2d Cir. 2002), cert denied, 537 U.S. 822, 123 S. Ct. 106,
154 L. Ed. 2d 31 (2002). We have noted that the probation officer is a
“confidential adviser to the court, . . . the court’s ‘eyes and ears’, a neutral
information gatherer with loyalties to no one but the court.” Id. (internal
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 Next, the use of the four-year old presentence report poses no Blakely
issues in this case where all objections to it were resolved at the original sentencing
hearing (See App. 63(a)(1),(2)). Moreover, the Appellant admitted to the facts that drove
up his guideline calculation, including what he admitted during the cooperation phase,
the use of which is permitted during the sentencing phase under paragraph 22 of the plea
agreement (App. 37(a), 37(b)).
Finally, Appellant never raised a Sixth Amendment claim before the district
court or on appeal and cannot do so now. United States v. Pultrone, 241 F.3d 306, 307
(3d Cir. 2001).
Based on the foregoing, we will affirm the judgment of the district court
filed and entered on April 20, 2004, wherein the court ordered that the period of
imprisonment imposed in this case on October 13, 2000, of twenty (20) years), is reduced
to a period of imprisonment of eighteen and one-half (18 ½) years.
quotation marks omitted). As such, the probation officer is “often the most
appropriate person [ ] to bring to the attention of the court . . . an offender’s
conduct that is threatening to the public.” Id. at 457 (internal quotation marks
omitted). Accord United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998)
(“Because of the close working relationship between the probation officer and the
sentencing court, the probation officer may communicate ex parte with the district
court.” (internal quotation marks omitted)).
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