United States v. Burks , 191 F. App'x 4 ( 2006 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2075
UNITED STATES,
Appellee,
v.
HIAWATHA BURKS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Marie E. Hansen and Willey Law Offices on brief for appellant.
Robert Clark Corrente, United States Attorney, Donald C.
Lockhart, and Adi Goldstein, Assistant United States Attorneys, on
brief for appellee.
August 1, 2006
Per Curiam. Defendant-appellant Hiawatha Burks appeals
from the sentence imposed after this court granted the parties'
joint motion for remand pursuant to United States v. Booker, 543
U.S. 220 (2005). On re-sentencing, the district court imposed a
sentence of 120 months, below the originally-imposed sentence of
168 months, the bottom of the applicable guidelines range. On
appeal, Burks maintains that the 120-month sentence is
unreasonable, notwithstanding that it is the sentence that defense
counsel requested at the re-sentencing hearing.1
Under Booker, sentences are reviewed for reasonableness,
regardless of whether they fall within or outside of the advisory
guidelines range. See United States v. Smith, 445 F.3d 1, 3 (1st
Cir. 2006). The emphasis in reviewing post-Booker claims that a
sentence is unreasonable is "on the provision of a reasoned
explanation, a plausible outcome and - where these criteria are met
- some deference to different judgments by the district judges on
the scene." United States v. Jimenez-Beltre, 440 F.3d 514, 519 (1st
Cir. 2006) (en banc).
I. Mitigating Factors
Appellant faults the district court for failing to give
adequate consideration to certain mitigating factors, including:
age of the defendant (25 years old at the time of the offense),
1
It is unnecessary for us to decide whether, given defense
counsel's request, Burks has waived the right to challenge the
length of the sentence on reasonableness grounds.
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education and vocational skills, past substance abuse and recent
rehabilitation, and family ties and responsibilities (as father of
a four-year-old son). "That a factor is discouraged or forbidden
under the guidelines does not automatically make it irrelevant when
a court is weighing the statutory factors apart from the
guidelines. The guidelines - being advisory - are no longer
decisive as to factors any more than as to results." Smith, 445
F.3d at 5.
At the re-sentencing hearing, defendant did not
specifically ask the court to consider most of the mitigating
factors that he focuses on in the present appeal. Therefore, he
may have waived his claims based on those factors. See United
States v. Mayes, 332 F.3d 34, 37 n.4 (1st Cir. 2003). Nonetheless,
the sentencing transcripts indicate that the court considered the
mitigating factors that Burks relies upon on appeal. In imposing
a sentence well below the applicable guidelines range, the court
took into consideration Burks' participation in education and other
programs during his incarceration. With respect to Burks' youth
and his family ties, the court reasonably determined that those
were not grounds for imposing a more lenient sentence in this case.
See Smith, 445 F.3d at 6 - 7 (reversing as unreasonable a sentence
less than half the minimum range where district court had relied
upon defendant's age but the defendant "although young, has
accumulated a significant criminal history").
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II. Career Offender Status
Appellant further argues that the sentence imposed is
unreasonable because of the unjustified extent of the disparity
between the sentences imposed on a defendant designated as a
"career offender" and a defendant not so designated. We have held
that such disparity results "from the policy choices made by
Congress and implemented by the Sentencing Commission. See 28
U.S.C. § 994(h)," and that failure to reduce a sentence on that
basis is not unreasonable. United States v. Caraballo, 447 F.3d 26,
28 (1st Cir. 2006). Moreover, in this case, the court at re-
sentencing expressly "looked . . . at what the Defendant's
sentencing range would have been without the career offender
provision."
Independent of the reasonableness of his sentence, Burks
challenges his career offender designation on Sixth Amendment
grounds, objecting that he did not admit to more than one prior
conviction to support his designation as a "career offender," and
that there had been no finding by a jury that his prior offenses
were "crimes of violence." As an initial matter, it appears that
Burks waived this argument. At the original sentencing hearing,
defense counsel stated that "there is not a dispute . . . that this
Defendant was appropriately placed in criminal history category
[VI] because he's a career offender within the meaning of the
guidelines." And the "Joint Motion for Remand in Light of Booker"
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states that "Burks does not challenge . . . the sentencing
guidelines calculations of the district court."
Even if the issue was not waived, however, we have held
that under Almendarez-Torres v. United States, 523 U.S. 224 (1998),
the Sixth Amendment does not require the fact and nature of prior
state convictions to be proved to a jury beyond a reasonable doubt.
Jimenez-Beltre, 440 F.3d at 520. "Whatever the continuing
viability of Almendarez-Torres, we have previously held that we are
bound to follow it until it is expressly overruled." Id.III. Crack/Powder Disparity Under Guidelines
Finally, appellant challenges his sentence on the ground
that the degree of disparity in the guidelines' treatment of crack
versus powder cocaine is unjustified and creates racial disparity
in sentencing. He also argues that in his case, the disparity
resulted in a sentence that was longer than necessary to achieve
the goals of sentencing set forth in § 3553(a). As with the
disparity argument regarding the career offender provision, the
crack-to-powder ratio argument does not demonstrate that Burks'
sentence is unreasonable. First, this court has held that a
sentencing court is without authority to make "a categorical,
policy-based rejection of the 100:1 ratio." United States v. Pho,
433 F.3d 53, 62 (1st Cir. 2006). Second, in arriving at a below-
guidelines sentence, the district court here specifically took into
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account "what the range would have been had the crack cocaine in
this case been treated as powder."
Independent of reasonableness, Burks also argues that the
government was required to charge and prove that the substance
involved in the charged offense was "crack." However, Burks
specifically admitted in his written plea agreement, and confirmed
at the change-of-plea hearing, that "the substance involved . . .
is cocaine base, also known by the street name of crack cocaine."
"A defendant waives his right to challenge sentencing factors when
he stipulates to the facts supporting the sentencing factor."
United States v. Soto-Cruz, 449 F.3d 258, 262 (1st Cir. 2006).
None of appellant's arguments provides grounds for
finding that the sentence imposed following remand was unreasonably
high. The factors that Burks faults the court for not considering
were either considered by the court or not raised by Burks.2 The
court gave a "reasoned explanation" for the sentence it imposed,
and the 120-month sentence is "a plausible outcome." Jimenez-
Beltre, 440 F.3d at 519. The sentence is affirmed.
2
In addition to the arguments mentioned above, Burks argued
that a lower sentence was warranted because he had been denied the
additional one-level reduction for acceptance of responsibility on
account of a change of counsel. However, the court specifically
took that fact into account at re-sentencing.
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