United States District Court, W.D. Arkansas, Fayetteville Division
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE
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
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).
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
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).
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., ¶
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.
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.
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).
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).
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).
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).
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
Burke's Criminal History Score Was Correct
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.
Burke's Prior Convictions Were Properly Counted
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.
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.
§ 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).
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.
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
Burke's Criminal History Score Was Improperly Calculated
- in Her Favor
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.
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 ...