United States v. Willie J. Burke, Jr. , 863 F.3d 1355 ( 2017 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16458
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D.C. Docket No. 4:09-cr-00063-RH-CAS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIE J. BURKE, JR.,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(July 19, 2017)
Before ED CARNES, Chief Judge, WILLIAM PRYOR and DUBINA, Circuit
Judges.
WILLIAM PRYOR, Circuit Judge:
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We must decide whether the term “prior sentence,” United States Sentencing
Guidelines Manual § 4A1.1(a) (Nov. 2015), includes a state sentence imposed after
a defendant’s initial federal sentence but before the district court vacated that
sentence and resentenced him. Willie Burke Jr. pleaded guilty to being a felon in
possession of a firearm, 18 U.S.C. § 922(g), and an armed career criminal, id.
§ 924(e), and was sentenced in 2010. In 2011, a Florida court sentenced him for
attempted armed robbery, armed robbery, and kidnapping to facilitate a felony or
terrorize with a firearm. In 2016, the district court vacated Burke’s federal
sentence, 28 U.S.C. § 2255, and conducted a full resentencing. The district court
added three criminal history points for Burke’s 2011 Florida sentence because it
was a “prior sentence” when the district court resentenced him, U.S.S.G.
§ 4A1.1(a). Burke now challenges that calculation. But we agree with the district
court that, when a court vacates a sentence, that sentence “becomes void in its
entirety,” United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996), so the term
“prior sentence” includes a state sentence imposed before resentencing. Burke also
asks us to vacate his sentence on the ground that another of his prior convictions,
for Florida armed robbery in 1999, is not a “crime of violence,” U.S.S.G.
§ 2K2.1(a)(4)(A), but our precedent forecloses this argument. We affirm.
I. BACKGROUND
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In October 2009, a federal grand jury indicted Willie Burke for being a felon
in possession of a firearm and an armed career criminal, 18 U.S.C.
§§ 922(g), 924(e). Burke pleaded guilty in 2010. The presentence investigation
report determined that Burke was an armed career criminal based on three prior
felony convictions: (1) a 1999 Florida conviction for burglary of a structure and
grand theft from a retail merchant; (2) a 1999 Florida conviction for burglary of a
dwelling and grand theft; and (3) a 1999 Florida conviction for armed robbery. The
district court imposed the statutory minimum sentence of 180 months
imprisonment followed by three years of supervised release.
In 2016, Burke moved to vacate his sentence, 28 U.S.C. § 2255. He argued
that the decision in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015), later
made retroactive in Welch v. United States, 136 S. Ct. 1257, 1268 (2016), required
vacatur of his sentence and resentencing. The government agreed, and the district
court ordered a “full resentencing.”
The probation office prepared a revised presentence investigation report.
The report calculated a base offense level of 20 because Burke had previously been
convicted of one “crime of violence,” Florida armed robbery in 1999, U.S.S.G.
§ 2K2.1(a)(4)(A). The report then applied a three-level reduction for acceptance of
responsibility, id. § 3E1.1(a), to arrive at a total offense level of 17. The report also
gave Burke ten criminal history points to arrive at a criminal history category of V.
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Three of those criminal history points pertained to Burke’s 2011 Florida
convictions for three counts of attempted armed robbery, nine counts of armed
robbery with a firearm, and twelve counts of kidnapping to facilitate a felony or
terrorize with a firearm. These convictions occurred after his initial sentencing.
The revised report recommended a term of imprisonment of 46 to 57 months.
Burke objected to the report on two grounds. First, Burke argued that the
report impermissibly added three criminal history points for his 2011 Florida
conviction. He explained that, because “judgment and sentence” for the 2011
conviction was imposed “a year after the initial sentencing in this case,” the 2011
conviction “cannot be considered a ‘prior sentence’ as th[at] term is defined in”
section 4A1.2(a) of the Guidelines. Second, he argued that his 1999 conviction for
Florida armed robbery is not a “crime of violence” for purposes of section
2K2.1(a)(4), although he acknowledged binding precedent to the contrary, United
States v. Lockley, 632 F.3d 1238, 1245–46 (11th Cir. 2011).
The district court overruled both objections at Burke’s sentencing hearing.
The district court ruled that a prior sentence includes any unrelated sentence
imposed before resentencing because “[t]he point of the criminal history
calculation is to figure out what kind of criminal record the defendant has. . . . And
so you take into account convictions prior to the time of sentencing.” The district
court also ruled that Florida armed robbery is a crime of violence. The district
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court sentenced Burke to 57 months imprisonment to be served consecutively to
his state sentences.
II. STANDARD OF REVIEW
We review de novo “a district court’s interpretation of the Sentencing
Guidelines.” United States v. Coast, 602 F.3d 1222, 1223 n.1 (11th Cir. 2010). We
also “review de novo whether a prior conviction qualifies as a ‘crime of violence’
under the Sentencing Guidelines.” Lockley, 632 F.3d at 1240.
III. DISCUSSION
Burke argues that the district court erred when it added three points to his
criminal history category for his 2011 sentence entered by the Florida court
because that state sentence was imposed after his initial federal sentencing and, as
a result, is not a “prior sentence” under the Sentencing Guidelines, U.S.S.G.
§ 4A1.1(a). We disagree. Because Burke moved to vacate his federal sentence and
was granted relief in 2016, his 2011 state sentence is a prior sentence.
“To properly interpret the Sentencing Guidelines, we begin with the
language of the Guidelines, considering both the Guidelines and the commentary.”
United States v. Fulford, 662 F.3d 1174, 1177 (11th Cir. 2011) (quoting United
States v. Panfil, 338 F.3d 1299, 1302 (11th Cir. 2003)). “The language of the
Sentencing Guidelines, like the language of a statute, must be given its plain and
ordinary meaning because as with Congress, we presume that the Sentencing
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Commission said what it meant and meant what it said.” Id. (alteration adopted)
(citations and internal quotation marks omitted). “The guidelines commentary is
authoritative unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that guideline.” Id. (internal
quotation marks omitted) (quoting United States v. Jordi, 418 F.3d 1212, 1216
(11th Cir. 2005)).
To calculate a defendant’s criminal history category, a district court must
“[a]dd 3 points for each prior sentence of imprisonment exceeding one year and
one month.” U.S.S.G. § 4A1.1(a) (emphasis added). The Guidelines define the
term “prior sentence” as “any sentence previously imposed upon adjudication of
guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part
of the instant offense.” Id. § 4A1.2(a)(1). The first comment to section 4A1.2(a)
clarifies this definition:
“Prior sentence” means a sentence imposed prior to sentencing on the
instant offense, other than a sentence for conduct that is part of the
instant offense. A sentence imposed after the defendant’s
commencement of the instant offense, but prior to sentencing on the
instant offense, is a prior sentence if it was for conduct other than
conduct that was part of the instant offense.
Id. § 4A1.2 cmt. 1 (emphasis added) (internal citation omitted). The question we
must decide “is ‘prior’ to what, the original sentence or the resentencing
sentence?” United States v. Ticchiarelli, 171 F.3d 24, 35 (1st Cir. 1999).
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The circuits are split on this question. The Eighth and Ninth Circuits have
held that when a defendant’s initial sentence is vacated, a sentencing court shall
add criminal history points for any unrelated sentences imposed after the initial
sentencing but before resentencing. United States v. Tidwell, 827 F.3d 761, 764
(8th Cir. 2016) (“At that time, Tidwell’s [intervening] conviction was plainly a
‘prior sentence,’ that is, ‘a sentence imposed prior to sentencing on the instant
offense.’” (quoting U.S.S.G. § 4A1.2 cmt. 1); United States v. Klump, 57 F.3d 801,
803 (9th Cir. 1995) (“[T]he general rule that resentencing is de novo applies and
the court correctly found that the state sentence was a ‘prior sentence.’”). The First
Circuit, in contrast, has held that “the most sensible reading is that the
[G]uidelines’ reference to ‘prior sentence’ means, in this context, a sentence which
is prior to the original sentence which was vacated and remanded only for
resentencing.” Ticchiarelli, 171 F.3d at 35. The First Circuit based its decision on
its mandate rule, which limits resentencing on remand to only those portions of the
sentence subject to the mandate of the First Circuit. Unlike our Court, the First
Circuit “does not permit de novo resentencing as to all aspects of a sentence when
a sentence has been vacated.” Id. (emphasis added).
The text of section 4A1.2(a), its related commentary, and our precedents
compel us to agree with the Eighth and Ninth Circuits. The phrase “sentencing on
the instant offense,” § 4A1.2 cmt. 1, refers to the sentencing that occurs after a
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court vacates an initial sentence because when a court in our circuit vacates a
sentence it “becomes void in its entirety.” United States v. Stinson, 97 F.3d 466,
469 (11th Cir. 1996). After vacatur, the original sentencing has “no validity or
effect,” Void, Black’s Law Dictionary (10th ed. 2014). “[T]he [vacated] sentence—
including any enhancements—[is] . . . ‘wholly nullified and the slate [is] wiped
clean.’” Stinson, 97 F.3d at 469 (quoting United States v. Cochran, 883 F.3d 1012,
1017 (11th Cir. 1989)). As a result, a district court may “reconstruct the sentence
utilizing any of the sentence components.” Id. That a vacated sentence is void and
resentencing occurs de novo establishes that a “prior sentence” under section
4A1.1(a) is any sentence imposed before resentencing. See United States v.
Martinez, 606 F.3d 1303, 1304 (11th Cir. 2010) (“[W]e have often held that a
general vacatur . . . allows for resentencing de novo.” (citation omitted)). We must
reject the reasoning of Ticchiarelli. Unlike the effect of vacatur in the First Circuit,
Ticchiarelli, 171 F.3d at 35 (“[Vacatur and remand] does not permit de novo
resentencing as to all aspects of a sentence. . . .”), vacatur in our Circuit wipes the
slate clean, Stinson, 97 F.3d at 469. And that clean slate requires a district court to
consider pre-vacatur sentences because a district court conducts a resentencing as
if no initial sentencing ever occurred.
The order of crimes does not affect whether a sentence is a prior sentence.
The application notes for section 4A1.2(a) make clear that it is the sequence of
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sentences not the sequence of crimes that matters. See § 4A1.2 cmt. 1 (“A sentence
imposed after the defendant’s commencement of the instant offense, but prior to
sentencing on the instant offense, is a prior sentence. . . .”). We and our sister
circuits have long recognized this rule of sentencing sequence. United States v.
Walker, 912 F.2d 1365, 1366 (11th Cir. 1990); see also United States v. Lopez, 349
F.3d 39, 41 (2d Cir. 2003); United States v. Flowers, 995 F.2d 315, 317 (1st Cir.
1993); United States v. Beddow, 957 F.2d 1330, 1337 (6th Cir. 1992); United
States v. Tabaka, 982 F.2d 100, 102 (3d Cir. 1992); United States v. Walling, 936
F.2d 469, 471 (10th Cir. 1991) holding modified by United States v. Torres, 182
F.3d 1156 (10th Cir. 1999); United States v. Hoy, 932 F.2d 1343, 1345 (9th Cir.
1991).
Burke argues that other provisions of the Guidelines support his position, but
we disagree. He contends that because comment 1(B)(iii) to section 1B1.10 of the
Guidelines allows a sentencing court to consider sentences imposed after an
“original sentencing proceeding,” this “specific inclusion of ‘post sentencing
conduct’ . . . suggests the exclusion of post-sentencing conduct in the definition of
‘prior sentence’ in [section] 4A1.2(a)(1).” But section 1B1.10 applies to a
reduction of a defendant’s sentence after the Commission has retroactively
amended a guideline, not a resentencing after vacatur. That is, section 1B1.10 and
its commentary speak of an “original sentence” only because that section allows
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for revisions to a sentence. Burke also argues that section 4A1.2(e)(1)—which
limits the “prior sentence[s]” a district court can consider to those sentences
“imposed within fifteen years of the defendant’s commencement of the instant
offense”—is further evidence that the reference point should be the original
sentencing. But section 4A1.2(e)(1) says nothing about the definition of the term
“prior sentence”; it instead limits the time period for which a prior sentence
mandates additional criminal history points. And it does not establish the initial
sentencing as a reference point. Section 4A1.2(e)(1) instead looks to the
“commencement of the instant offense” to set the time period.
Burke finally contends that the term “prior sentence” is ambiguous and the
ambiguity should be resolved in his favor under the rule of lenity, but even Burke
acknowledges that it is “doubtful that the judicial interpretation of advisory
Sentencing Guidelines promulgated by an independent commission implicates
either of the twin concerns that motivate the rule of lenity.” United States v.
Wright, 607 F.3d 708, 719 (11th Cir. 2010) (William Pryor, J., concurring). And in
any event, the text of the guideline is clear—“‘prior sentence’ means a sentence
imposed prior to sentencing on the instant offense,” U.S.S.G. § 4A1.2 cmt. 1.
Burke’s alternative ground for appeal—that the district court erred in
calculating his sentence because his 1999 Florida conviction for armed robbery is
not a “crime of violence” as that term is used in section 2K2.1(4)(A) of the
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Guidelines—is foreclosed by binding precedent. United States v. Fritts, 841 F.3d
937, 938 (11th Cir. 2016) (holding that a conviction for Florida armed robbery is a
crime of violence under the Armed Career Criminal Act); Lockley, 632 F.3d at
1246 (holding that a conviction under the Florida robbery statute, Fla. Stat.
812.13(1), is a “crime of violence” under section 4B1.2(a)).
IV. CONCLUSION
We AFFIRM Burke’s sentence.
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