12-2925-cr(L); 12-3628-cr(CON)
United States v. Miles, et al.


                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
       Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure
32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
Court, a party must cite either the Federal Appendix or an electronic database (with the notation
“summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5th
day of September, two thousand thirteen.

PRESENT:
            JOSÉ A. CABRANES,
            CHESTER J. STRAUB,
            SUSAN L. CARNEY,
                          Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                     Appellee,

                              v.                                                      Nos. 12-2925-cr(L);
                                                                                      12-3628-cr(CON)
MICHELLE MILES, BRIAN BURRELL,
AKA B-WOP,

                     Defendants-Appellants,

STANLEY BURRELL, ARTURO BROWN, AKA
RAMBO, HOWARD MIDGETTE, AKA HOW BOW,
DARRYL BANKS, AKA POP,

                     Defendants.1

_____________________________________


1   The Clerk of Court is directed to amend the caption of this case to conform to the listing of the parties shown above.
FOR MICHELLE MILES:                                    DAVID A. LEWIS, Assistant Federal Public
                                                       Defender, Federal Defenders of New York,
                                                       Inc., New York, NY.

FOR BRIAN BURRELL:                                     Steve Zissou, Steve Zissou & Associates,
                                                       Bayside, NY.

FOR APPELLEE:                                          SETH D. DUCHARME (Susan Corkery, on the
                                                       brief), Assistant United States Attorneys, for
                                                       Loretta E. Lynch, United States Attorney,
                                                       United States Attorney’s Office for the
                                                       Eastern District of New York, Brooklyn, NY.

       Appeal from two orders of the United States District Court for the Eastern District of New
York (Raymond J. Dearie, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the District Court’s July 18, 2012 and September 11, 2012
orders are AFFIRMED.
                            BACKGROUND

                                                  A.

         These consolidated appeals involve two defendants, Michelle Miles and Brian Burrell, who
were convicted of various drug crimes based on their respective roles in a “crack” cocaine and
heroin distribution network that operated in the 1990s in Brooklyn, New York. See United States v.
Burrell, 289 F.3d 220, 222 (2d Cir. 2002). The drug operation was organized by Burrell’s brother,
Stanley. Id. Miles “was Stanley[’s] . . . girlfriend, [and] acted as the business manager for his
organization, hiring workers, scheduling shifts, supplying workers, collecting money, and cooking
and packaging crack.” Id. at 223. Burrell began working “for his brother’s organization in the early
1990s.” Id.

         Based on their involvement with this drug organization, Miles and Burrell (among others)
were charged with conspiracy to distribute heroin and crack in violation of 21 U.S.C. § 846. Id. The
indictment also charged Miles with one count of possession with intent to distribute crack cocaine,
in violation of 21 U.S.C. § 841(a)(1). Id. After a jury trial, Miles and Burrell were convicted on all
counts. Id.

        On March 24, 2000, Miles was sentenced by the late Judge Eugene Nickerson to 360
months’ imprisonment, to be followed by five years of supervised release. Burrell was sentenced the
same day by Judge Nickerson to a term of life imprisonment without the possibility of parole.
Miles and Burrell both appealed.
                                                  2
        On appeal, we vacated Burrell’s sentence in light of the Supreme Court’s decision in Apprendi
v. New Jersey, 530 U.S. 466 (2000), because “the court rather than the jury calculated the drugs
attributable” to him, and we remanded Burrell’s case to the District Court for resentencing. Burrell,
289 F.3d at 224-25. We did not vacate Miles’s sentence under “plain error” review because she
would have received the same sentence notwithstanding the district court’s error.2 Id. at 225. On
remand, the District Court sentenced Burrell to 318 months’ imprisonment, which was below the
Guidelines range of 360 months to life imprisonment.

        Burrell then appealed his 318-month sentence and, in 2004, we rejected his substantive
claims. See United States v. Burrell, 115 F. App’x 471 (2d Cir. 2004) (non-precedential summary order).
Less than a year later, however, we remanded Burrell’s case for a second time in light of United States
v. Booker, 543 U.S. 220 (2005), and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). Following the
Crosby remand, the District Court reduced Burrell’s sentence further, to 228 months’ imprisonment.

        Burrell then appealed his 228-month sentence and, in 2008, we remanded Burrell’s case for a
third time in light of our decision in United States v. Regalado, 518 F.3d 143 (2d Cir. 2008). This third
remand was to ensure that the District Court understood the extent of its discretion to reduce
Burrell’s sentence, pursuant to Kimbrough v. United States, 552 U.S. 85 (2007), in light of the
sentencing disparity between crack and powder cocaine offenses.

        Both before and after Burrell’s matter was remanded in light of Regalado, the United States
Sentencing Commission (“Commission”) amended the Sentencing Guidelines. Specifically, in 2007,
the Commission amended § 2D1.1(c) of the Guidelines to reduce all sentences for crack cocaine
offenses by two offense levels; the following month, the Commission voted to make those
amendments retroactive. See United States v. Williams, 551 F.3d 182, 184 (2d Cir. 2009). Then, in
2010, pursuant to the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372
(2010), the Commission again amended the Guidelines by further “retroactively reduc[ing] the base
offense levels for crack-cocaine offenses.” United States v. Figueroa, 714 F.3d 757, 759 (2d Cir. 2013).

       In light of these amendments to the Guidelines, both Burrell and Miles filed motions for
sentencing reductions pursuant to 18 U.S.C. § 3582(c)(2). The District Court considered those
motions as well as the Regalado issue presented by our third remand in Burrell’s case.




2 Specifically, we did not vacate Miles’s sentence because she was “convicted of two crimes and the sentence to be
imposed on the count carrying the maximum penalty [wa]s less than the total punishment mandated by the Guidelines.”
Burrell, 289 F.3d at 225. Accordingly, the District Court was required to “run the sentences consecutively to the extent
necessary to achieve the Guidelines punishment . . . [and,] [i]n Miles’[s] case, this requirement would have resulted in the
same sentence she actually received, thirty years.” Id.
                                                             3
                                                    B.

        With regard to Miles, the District Court denied her § 3582(c)(2) motion for a sentence
reduction, concluding that such a modification was not authorized because the “the crack cocaine
amendments ‘d[id] not have the effect of lowering [her] applicable guideline range’” inasmuch as the
drug quantity attributed to Miles was so great. United States v. Miles, No. 97 CR 998 2 (RJD), 2012
WL 2923489, at *2 (E.D.N.Y. July 18, 2012) (quoting U.S.S.G. § 1B1.10(a)(2)(B)); see also id.
(“Although the recent amendments raise the minimum quantity of crack cocaine required for the
highest base offense level (38) to 8.4 kilograms, this amount is still far below the more than 61.54
kilograms attributed to defendant in this case.” (internal citations omitted)).

          With regard to Burrell, Judge Dearie rejected his § 3582 motion on the same basis. United
States v. Burrell, No. 97 CR 9985 (RJD), 2012 WL 3990654, at *3 (E.D.N.Y. Sept. 11, 2012) (“The
recent amendments [to the Guidelines] raise the minimum quantity of crack cocaine required for the
highest base offense level (38) to 8.4 kilograms, an amount still far below the 30 kilograms for which
defendant was held responsible.” (internal citation omitted)). On the Regalado issue, Judge Dearie
noted that in resentencing Burrell to a 228-month sentence, he “var[ied] downward from the
applicable [Guidelines] range of 360 months to life imprisonment.” Id. at *4. Accordingly, in Judge
Dearie’s view, the non-Guidelines sentence imposed on Burrell “moots Regalado’s main question of
whether [the Court] would have imposed a non-Guidelines sentence knowing that it had discretion
to deviate from the range produced by the 100-to-1 ratio.” Id. (internal quotation marks omitted).
Judge Dearie also rejected Burrell’s arguments related to the 18 U.S.C. § 3553(a) factors. Id.
(“Defendant makes several arguments bearing upon the factors listed in 18 U.S.C. § 3553(a), none of
which change the result.”).

        Miles and Burrell both appealed.

                                             DISCUSSION

                                                A. Miles

        On appeal, Miles argues that the District Court erred in concluding that her Guidelines range
had not been lowered by the crack cocaine amendments based “on [its] finding that the sentencing
court had based its sentence on the drug amount attributed to Ms. Miles in the Presentence Report,
61.54 kilograms of crack cocaine.” Miles Br. 13.

        In connection with a district court’s application of the Guidelines, we review the district
court’s factual findings for clear error and its conclusions on legal questions de novo. United States v.
Turk, 626 F.3d 743, 747 (2d Cir. 2010). Our review of “a district court’s decision to modify or
maintain a sentence under 18 U.S.C. § 3582(c)(2) [is] for abuse of discretion.” Figueroa, 714 F.3d at
                                                     4
759; see also In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (noting that a district court abuses its
discretion if it “base[s] its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence, or render[s] a decision that cannot be located within the range of
permissible decisions” (internal citation and quotation marks omitted)).

        Section 1B1.10(a)(2) of the Guidelines provides that “[a] reduction in the defendant’s term
of imprisonment . . . is not authorized under 18 U.S.C. § 3582(c)(2) if . . . [an amendment] does not
have the effect of lowering the defendant’s applicable guideline range.”3 U.S.S.G. § 1B1.10(a)(2)(B).
Although Miles concedes that her base offense level of 38 has not changed for crimes involving 8.4
kilograms or more of crack cocaine, see U.S.S.G. § 2D1.1(c)(1) (2012), she asserts that she is entitled
to a sentence reduction, inasmuch as the District Court “made no specific finding of the applicable
drug amount” at her original sentencing. Miles Br. 16.

         We cannot agree with Miles’s argument based on our review of the record. At Miles’s
original sentencing, Judge Nickerson adopted the drug quantity amounts in the Pre-Sentence Report
(as relevant here, 61.54 kilograms of crack cocaine), stating that “I studied the presentence report
and it seems to me clear under the evidence in the case that the base offense level of 38 is right, that
the amount of crack cocaine was far in excess of what would amount to [an offense level of] 38, and
it seemed to me credible that the defendant possessed a firearm, which would [increase] the total
offense level [by] 2 [levels].” App’x 47-48. Moreover, in the statement of reasons accompanying the
judgment, Judge Nickerson specifically noted that “[t]he court adopt[ed] the factual findings in the
presentence report but finds . . . that the appropriate addition for role adjustment is two rather than
four.” Id. at 56.

         Miles argues for the first time on appeal that the Pre-Sentence Report is inconsistent with
the trial evidence with respect to the dates of her membership in the conspiracy, and that the district
court accordingly erred in relying on Judge Nickerson’s statement that he adopted the factual
findings in the Report. Miles claims that the Pre-Sentence Report attributes the entire quantity of
drugs distributed from 1990 to 1997 to her, and argues that she should not be held responsible for
the quantities distributed before she became a member of the conspiracy in 1993. Even assuming
that Miles preserved this argument for appeal, however, the evidence adduced at trial still supports
her sentence. In particular, there is record evidence from which the court could reasonably infer
that the drug organization’s overall rate of distribution of crack cocaine during the life of the
conspiracy resulted in a total distribution of an amount well in excess of 8.4 kilograms of crack
cocaine while Miles was a member of the conspiracy. Consequently, the district court did not abuse
its discretion in denying the defendant’s motion for a sentence reduction.

3 The advisory notes to § 1B1.10 define the “applicable guideline range” as “the guideline range that corresponds to the
offense level and criminal history category determined pursuant to § 1B1.1(a), which is determined before consideration
of any departure provision in the Guidelines Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A).

                                                           5
                                               B. Burrell

        Burrell does not challenge the District Court’s denial of his § 3582(c)(2) motion, and only
argues on appeal that the Judge Dearie failed to follow the instructions of United States v. Regalado―to
“consider the factors set forth in 18 U.S.C. § 3553(a) anew and in light of Gall and Kimbrough,” 518
F.3d at 151―in deciding not to resentence him, see Burrell Br. 8 (internal quotation marks and
emphasis omitted). In particular, Burrell argues that Judge Dearie simply relied on his consideration
of the § 3553(a) factors from Burrell’s 2006 resentencing and did not consider the factors anew. Id.

        A district court commits a procedural error in sentencing when it “does not consider the 18
U.S.C. § 3553(a) factors.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). In
reviewing a sentence for procedural error, “we apply a particularly deferential form of abuse-of-
discretion review.” United States v. Malki, 718 F.3d 178, 182 (2d Cir. 2013). Our analysis is no
different following a district court’s decision not to resentence a defendant under Regalado, except
that we make sure that the court articulated its reasons for declining to do so. See 518 F.3d at 149.

        After reviewing the record, we conclude that District Court did consider the § 3553(a)
factors “anew” with regard to Burrell. Although Burrell is correct that the District Court referred to
his 2006 resentencing in its most recent order, it also expressly rejected Burrell’s newly-raised
§ 3553(a) arguments and discussed events that had transpired after the 2006 resentencing in
considering the § 3553(a) factors. See Burrell, 2012 WL 3990654, at *4.

        In any event, Burrell raises no argument sufficient to rebut our presumption that “in the
absence of record evidence suggesting otherwise, . . . a sentencing judge has faithfully discharged
h[is] duty to consider the statutory factors.” United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006).

                                           CONCLUSION

       We have considered all of the arguments raised by Miles and Burrell on appeal and find
them to be without merit. For the reasons stated above, we AFFIRM the District Court’s July 18,
2012 and September 11, 2012 orders.
                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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