                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-9-2009

USA v. Burnett
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2403




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"USA v. Burnett" (2009). 2009 Decisions. Paper 1897.
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                                   NOT PRECEDENTIAL
      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 08-2403
                   _____________

         UNITED STATES OF AMERICA,

                          v.

                 JOSEPH BURNETT,
                       a/k/a
                    JOHN JONES

                     Joseph Burnett,
                            Appellant
                  _______________

    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
                (D.C. No. 01-cr-0005-1)
      District Judge: Honorable Sylvia H. Rambo
                   _______________

      Submitted Under Third Circuit LAR 34.1(a)
                  February 2, 2009

Before: RENDELL, JORDAN and ROTH, Circuit Judges,

              (Filed: February 09, 2009 )
                  _______________

             OPINION OF THE COURT
                 _______________
JORDAN, Circuit Judge.

         Defendant Joseph Burnett appeals a District Court order denying his motion for a

sentence reduction under the United States Sentencing Commission’s recent amendment

to the Guidelines ranges for crack cocaine offenses. Because the District Court’s decision

to deny Burnett’s motion was an appropriate exercise of its discretion, we will affirm its

order.

I.       Background

         On March 12, 2001, Burnett pled guilty to distribution of crack cocaine, in

violation of 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of drug

trafficking, in violation of 18 U.S.C. § 924(c). He was sentenced, on August 29, 2001, to

ninety-seven months in prison: thirty-seven months for the drug charge and sixty months

for the weapons charge. On February 14, 2003, the District Court, upon the government’s

motion, recognized Burnett’s substantial assistance to the government and reduced his

prison sentence to seventy-eight months, pursuant to Federal Rule of Criminal Procedure

35(b). On November 1, 2007, Burnett escaped from the Capitol Pavilion Community

Corrections Center. He was arrested and, on February 20, 2008, pled guilty to escape, in

violation of 18 U.S.C. §751(a).




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       While awaiting his sentence for escape,1 Burnett brought a motion before the

District Court requesting that his sentence for distributing crack cocaine be reduced based

on the recent amendment to the Sentencing Guidelines for crack cocaine offenses. On

May 2, 2008, the District Court issued an order denying Burnett’s motion for a sentence

reduction. The District Court reasoned that: “Defendant plead[ed] guilty to escape on

February 20, 2008. That plea, along with institutional incident reports, shows that

Defendant presents a public safety factor and is not deserving of a reduction.” (App. 3.)

Burnett filed a timely notice of appeal and argues that the District Court erred in denying

his motion for a sentence reduction.

II.    Discussion 2

       Effective November 1, 2007, the United States Sentencing Commission adopted

Amendment 706, which generally decreased by two levels the base offense levels for

crack cocaine offenses. See United States v. Wise, 515 F.3d 207, 220 (3rd Cir. 2008). A

defendant who was sentenced on a crack cocain offense before Amendment 706 took

effect can bring a motion in the district court requesting that his sentence be reduced

pursuant to 18 U.S.C. § 3582(c)(2).




       1The District Court eventually sentenced Burnett to thirty-seven months
imprisonment for escape, to run consecutively with the time remaining on his sentence for
the drug and weapons convictions.

        2 The District Court had jurisdiction to review Burnett’s motion for modification
of his sentence under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.

                                             3
       Congress has provided district courts with the discretion to reduce sentences that

are based on sentencing ranges that are subsequently lowered by the Sentencing

Commission:

       in the case of a defendant who has been sentenced to a term of
       imprisonment based on a sentencing range that has subsequently been
       lowered by the Sentencing Commission pursuant to 28 U.S.C. 994 (o), upon
       motion of the defendant or the Director of the Bureau of Prisons, or on its
       own motion, the court may reduce the term of imprisonment, after
       considering the factors set forth in section 3553 (a) to the extent that they
       are applicable, if such a reduction is consistent with applicable policy
       statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2) (emphasis added).3 The Sentencing Guidelines provide three

factors for consideration in deciding whether to exercise that discretion to reduce a

sentence under § 3582(c)(2). U.S.S.G. § 1B1.10, n.1(B). First, the court should consider

the 18 U.S.C. § 3553 (a) factors. Id. at n.1(B)(i). Second, it should take into account

public safety considerations. Id. at n.1(B)(ii). Specifically, the Commentary to the



        3We review de novo a district court's interpretation of the Sentencing Guidelines.
United States v. Wood, 526 F.3d 82, 85 (3d Cir. 2008). Although we have not explicitly
set forth the applicable standard of review of a district court’s decision to grant or deny a
sentence modification pursuant to 18 U.S.C. § 3582(a)(2), circuits which have considered
the issue apply an abuse of discretion standard. United States v. Carter, 500 F.3d 486,
490 (6th Cir. 2007); United States v. Rodriguez-Pena, 470 F.3d 431, 432 (1st Cir. 2006).
Courts which have considered the interplay between the career offender provisions of the
Guidelines and the recent amendments to the crack cocaine ranges have applied a de novo
standard of review to the district court’s interpretation of the impact of the amendments
on the Sentencing Guidelines and an abuse of discretion standard to the court’s
determination of whether to grant a particular defendant’s motion for a sentence
modification under those amendments. United States v. Sharkey, 543 F.3d 1236, 1238-39
(10th Cir. 2008); United States v. Moore, 541 F.3d 1323, 1327 (11th Cir. 2008). We will
do the same.

                                              4
Guidelines directs that “[t]he court shall consider the nature and seriousness of the danger

to any person or the community that may be posed by a reduction in the defendant’s term

of imprisonment... .” Id. And third, the court should consider a defendant’s post-

sentence conduct. Id. at n.1(B)(iii).

       The District Court considered the evidence before it – evidence that included

prison incident reports and Burnett’s guilty plea to the crime of escape – and concluded

that Burnett presented a public safety risk and did not deserve to have his sentence

reduced. The District Court thus had a proper legal and factual basis for its decision.

There was no abuse of discretion.

III.   Conclusion

       Because the District Court’s decision to deny Burnett’s motion was an appropriate

exercise of its discretion, we will affirm its order denying a reduction in Burnett’s

sentence.




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