United States v. Burke

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed August 9, 2018. (ECF No. 47). The United States filed its response on September 10, 2018. (ECF No. 49). Defendant filed a reply on November 26, 2018. (ECF No. 52). The matter is ready for report and recommendation.

         I. Background

         Defendant, Angela Renee Burke (“Burke”), was named in an Indictment issued on March 1, 2017, charging her with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (ECF No. 1). Burke was arrested on March 20, 2017. (ECF No. 13). She was brought before the Hon. Erin L. Wiedemann (formerly Setser), U.S. Magistrate Judge, on March 21, 2017 for arraignment, at which time Burke entered a plea of not guilty to the Indictment. (ECF No. 7). Jack Schisler (“AFPD Schisler”), an Assistant Federal Public Defender for the Western District of Arkansas, was appointed to represent Burke. (Id.; Text Only Order entered on March 21, 2017).

         On April 27, 2017, Burke appeared with counsel before the Hon. Timothy L. Brooks, U.S. District Judge, for a change of plea hearing. (ECF No. 14). A written Plea Agreement was presented to the Court wherein Burke agreed to plead guilty to the one-count Indictment charging her with conspiracy to distribute methamphetamine. (ECF No. 15, ¶ 1). The Court reviewed the Plea Agreement with Burke, advised her of her rights and the maximum penalties, and Burke entered a plea of guilty to the Indictment. (ECF No. 14). The Court determined Burke's guilty plea was voluntary and supported by an independent basis in fact; her guilty plea was accepted and she was found guilty as charged. (Id.). Tentative approval of the Plea Agreement was expressed pending completion of a presentence investigation report (“PSR”). (Id.)

         An initial PSR was prepared by the United States Probation Office on July 7, 2017. (ECF No. 24). Burke made five objections to the PSR on July 20, 2017. (ECF No. 25). All of Burke's objections to the PSR related to factual matters that did not effect the guidelines calculation. (ECF No. 25). No. objections to the PSR were made by the United States. (ECF No. 26). U.S. Probation verified the information provided by Burke in her objections, and revisions were made in the final PSR that was submitted to the Court on July 26, 2017. (ECF Nos. 27, 27-1).

         The final PSR determined that Burke was accountable for 203.8 grams of actual methamphetamine. (ECF No. 27, ¶¶ 15, 17). As a result, Burke's Base Offense Level was determined to be 32. (Id., ¶ 22). No. adjustments were made for specific offense characteristics, victim related characteristics, role in the offense, or obstruction of justice. (Id., ¶¶ 23-26). The PSR noted that Burke met the qualifications for a career offender pursuant to U.S.S.G. § 4B1.1; however, the offense level from the table in § 4B1.1(c) was the same as the offense level otherwise applicable. (Id., ¶ 28). After a three-level reduction for acceptance of responsibility, Burke's Total Offense Level was determined to be 29. (Id., ¶¶ 29-31). Burke had a criminal history score of 12, placing her in Criminal History Category V. (Id., ¶¶ 54-56). The PSR again noted that Burke met the criteria for a career offender, and that a career offender's criminal history category in every case shall be category VI pursuant to U.S.S.G. § 4B1.1(b). (Id., ¶ 57). The statutory maximum term of imprisonment for the offense of conviction is 20 years. (Id., ¶ 92). Based upon a Total Offense Level of 29 and a Criminal History Category of VI, Burke's advisory guidelines range was determined to be 151 to 188 months imprisonment. (Id., ¶ 93).

         On August 2, 2017, AFPD Schisler filed Defendant's Sentencing Memorandum in which he argued that Burke is a drug addict; that she began her drug use at a very early age; appeared to have had little, if any, adult supervision during that time; and, that a downward variance to a sentence of 96 months, or eight years, would comport with the sentencing factors and requirements of 18 U.S.C. § 3553. (ECF No. 29).

         Burke appeared with her counsel for sentencing on August 16, 2017. (ECF No. 30). The Court made inquiry that Burke was satisfied with his counsel; it was determined that Burke and her counsel had the opportunity to read and discuss the PSR; the PSR was reviewed in open court; both the United States and Burke's counsel were afforded the opportunity to make a statement to the Court; Burke was afforded the opportunity to make a statement and present information in mitigation of sentence; and, the Court granted Burke's request for a downward variance and imposed a below guidelines sentence of 110 months imprisonment, four years of supervised release, a fine of $2, 400.00, and a $100.00 special assessment. (Id.). Judgment was entered by the Court on August 18, 2017. (ECF No. 31). Burke did not pursue a direct appeal from the Judgment.

         Burke filed a Motion for Reduction of Sentence on June 19, 2018. (ECF No. 44). While applauding Burke's “active steps to turn her life around and overcome her addiction, ” the Court found no valid legal basis for reducing the sentence imposed, and Burke's motion was denied on June 19, 2018. (ECF No. 45).

         On August 9, 2018, Burke filed her pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “motion”). (ECF No. 47). The motion asserts three grounds for relief: (1) ineffective assistance of counsel for not objecting to an incorrect assessment of criminal history points; (2) ineffective assistance of counsel for not requesting a minor role reduction; and, (3) that she should have been sentenced under the methamphetamine-mixture guideline rather than the actual/pure methamphetamine guideline. (Id., pp. 4-6, 14-17).

         The United States filed a response to the motion on July 10, 2018. (ECF No. 49). The Government contends that Burke's criminal history score was properly calculated, that counsel exercised reasonable trial strategy by not arguing for a minor role reduction, and that Burke was not prejudiced by counsel's decision not to argue for sentencing under the methamphetamine mixture guideline. (Id.) Burke filed a reply on November 26, 2018. (ECF No. 52).

         II. Discussion

         “A prisoner in custody under sentence . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

         A thorough review of Burke's motion and the files and records of this case conclusively shows that Burke is not entitled to relief, and the dismissal of her motion is recommended.

         A. Burke's Criminal History Score Was Correct

         Burke first claims that counsel should have objected to her criminal history score as reported in the PSR. Her argument misapprehends the Sentencing Guidelines and has no merit. Her prior felony convictions were properly counted separately; her criminal history score was actually miscalculated in her favor; and, she suffered no prejudice because she was properly classified as a Career Offender under Chapter Four of the Sentencing Guidelines.

         1. Burke's Prior Convictions Were Properly Counted Separately

         Burke contends she should not have received three criminal history points for each of her prior felony convictions reported in paragraphs 48 and 51 of the PSR. (ECF No. 47, p. 14). Burke's argument is based upon the fact that she was sentenced on the same date in each of those cases following probation revocations stemming from a single arrest for another offense. (Id.). Her claim ignores U.S.S.G. § 4A1.2 which requires her prior convictions and sentences to be treated separately.

         The two prior convictions at issue arose from arrests made on July 11, 2012 (ECF No. 27, ¶ 48) and September 22, 2013 (Id., ¶ 51). While Burke requested additional information be added to paragraphs 48 and 51 (noting that she did not have any pending parole revocation proceedings), Burke made no other objections to these two prior convictions in the PSR (ECF No. 27-1, p. 1), and it is clear that the prior convictions were for offenses separated by intervening arrests. Burke mistakenly believes that her arrest for Delivery of Methamphetamine and Possession of Methamphetamine with Purpose to Deliver on September 22, 2013 (ECF No. 27, ¶ 51), which led to a probation revocation in her prior case on November 21, 2013 (Id., ¶ 48), transformed those two convictions into a single sentence for guidelines purposes. Contrary to Burke's argument, “[u]nder the guidelines ... an intervening arrest ends the inquiry.” United States v. Simms, 695 F.3d 863, 865 (8th Cir. 2012) (quoting United States v. Crippen, 627 F.3d 1056, 1066 (8th Cir. 2010), cert. denied, 563 U.S. 1013 (2011)). Additionally, it has long been held in the Eighth Circuit that a defendant's unrelated prior convictions do not become related for purposes of the Sentencing Guidelines when probation on the prior convictions is revoked and the defendant is ordered to serve original terms of imprisonment concurrently. See, e.g., United States v. Jones, 87 F.3d 247, 248 (8th Cir. 1996).

         U.S.S.G. § 4A1.2(k)(1) provides, “[i]n the case of a prior revocation of probation, parole, supervised release, special parole, or mandatory release, add the original term of imprisonment to any term of imprisonment imposed upon revocation.” (Emphasis added.). Burke was originally sentenced to six years probation for her July 11, 2012 arrest and conviction; but, upon revocation of her probation on November 21, 2013, she was sentenced to 120 months imprisonment with 72 months suspended. (ECF No. 27, ¶ 48). The total length of Burke's original sentence, when added to the sentence imposed upon revocation, exceeded one year and one month, so three criminal history points were correctly assessed for Burke's probation revocation sentence pursuant to U.S.S.G. § 4A1.1(a).

         Finally, Application Note 11 to U.S.S.G. § 4A1.2(k)(1) instructs that if, “at the time of revocation another sentence was imposed for a new criminal conviction, that conviction would be computed separately from the sentence imposed for the revocation.” On November 21, 2013, Burke was sentenced to a term of 240 months imprisonment, with 120 months suspended, and 62 days jail time credit, for the felony drug offenses that triggered the revocation in her earlier case. (ECF No. 27, ¶ 51). Three criminal history points were properly assessed for that conviction. (Id.).

         Accordingly, the prior conviction reported in paragraph 48 of the PSR was properly counted separately and assessed three points. It was also correct to consider Burke's November 21, 2013 conviction separately and to assess three points for it. There was no error in counting Burke's prior sentences separately.

         2. Burke's Criminal History Score Was Improperly Calculated - in Her Favor

          Burke contends she “should have only been pointed a total of 4 points for the charges that occurred on the dates of 1-9-13, 7-11-12 and 9-12-13.” (ECF No. 47, p. 14). She is wrong about this, and the PSR actually miscalculated her criminal history score in her favor.

         As just discussed above, Burke's prior sentences were properly counted separately. This resulted in three points being assessed for Burke's prior sentence upon revocation on November 21, 2013 in No. CR 12-1247-6 (ECF No. 27, ¶ 48), and three points also being assessed for Burke's prior sentence imposed in the offense ...