                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-17-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2173




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 04-2173


                          UNITED STATES OF AMERICA

                                          v.

                                KENNETH BURNAM
                                    a/k/a “KB”
                          a/k/a VICTOR JR. RICHARDSON
                          a/k/a VENTON EUGENE SMITH

                                  Kenneth Burnam,

                                                          Appellant


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           (D.C. Crim. No. 99-cr-00205-01)
                      District Judge: Hon. William W. Caldwell


                      Submitted under Third Circuit LAR 34.1(a)
                                   March 7, 2006

              BEFORE: GREENBERG and ROTH*, Circuit Judges, and
                       BUCKWALTER**, District Judge

                               (Filed: August 17, 2006)


      *Judge Roth assumed senior status on May 31, 2006.

       **Honorable Ronald L. Buckwalter, Senior Judge of the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
                               OPINION OF THE COURT


BUCKWALTER, Senior District Judge.

              This is an appeal which initially raises the issue stated by Appellant as

follows:

                     Whether this Honorable Court has jurisdiction over this appeal from
                     a Rule 35(b) order under the broader statute at 28 U.S.C. § 1291
                     pertaining to final orders of District Court as well as the more
                     narrow statute 18 U.S.C. § 3742(a) governing appeals from
                     judgment of sentence?

              This court, in a footnote in U.S. v. Cooper, 437 F.3d 324, 327 (3d Cir.

2006) suggests that jurisdiction might be found in both. A portion of that note follows:

                     Although we rely solely on 18 U.S.C. § 3742(a)(1) as the basis for
                     our jurisdiction to review for reasonableness, we note there also
                     might be jurisdiction under 28 U.S.C. § 1291. This Court has
                     regularly taken jurisdiction over sentencing appeals under both
                     statutes. See, e.g., United States v. Graham, 72 F.3d 352, 358 n. 8
                     (3d Cir. 1995) (“[W]e believe our jurisdiction to review
                     [defendant’s] sentence lies pursuant to 28 U.S.C. § 1291 and 18
                     U.S.C. § 3742(a)(1) because [defendant] has alleged that his
                     sentence was imposed in violation of law, that is, in violation of his
                     constitutional rights.”); United States v. King, 21 F.3d 1302, 1304
                     (3d Cir. 1994) (“We have jurisdiction over [defendant’s] appeal
                     from the district court’s judgment of sentence pursuant to 18 U.S.C.
                     § 3742(a) and 28 U.S.C. § 1291.”).

              Clearly, however, this court does not have jurisdiction to review the district

court’s exercise of discretion regarding whether or by how much to grant a downward

departure or the extent of the departure. See Cooper, supra, at p. 332, 333.


                                             2
                Next, Appellant argues notwithstanding the lack of jurisdiction with regard

to the court’s exercise of discretion that the sentence was imposed in violation of law and

it was plainly unreasonable. § 3742(a)(1)(4).

                First, Appellant claims that the district court went far beyond the scope of

his undisputed substantial assistance by taking into account other matters such as his

presentence report in refusing to grant him a meaningful reduction.1 This is nothing more

than an argument about the court’s exercise of its discretion over which we have no

jurisdiction.

                Second, Appellant claims the district court met secretly with the probation

officer and reconsidered a four-year old, inaccurate presentence report.

                Finally, since his original sentence imposed on October 13, 2000 was

enhanced by a judge and not a jury, it was imposed in violation of Blakely v.

Washington, 124 S.Ct. 2531 (2004). Appellant’s direct appeal from that sentence was

denied and the judgment of sentence affirmed on July 16, 2001 (see 265 F.3d 1057 (3d

Cir. 2001 (table)).

                With regard to the second claim above, the record reveals that the district

court sentenced Appellant on October 13, 2000. About 3 ½ years later, on April 20,

2004, the same district court held a hearing on the Rule 35 motion filed by the


1. Rule 35(b) does not in any way limit what factors the court may consider as to ruling
against a reduction in sentence. What it does say is the factor the court may consider in
favor of a sentence reduction; namely, substantial assistance in investigating or
prosecuting another person.
                                               3
government. At that hearing, the court received the testimony of a DEA agent who

explained the assistance Appellant provided to the DEA. The Appellant, called as a

witness by his counsel, testified and asked that in addition to a downward departure, he

receive an evaluation for the 500-hour drug program (App. 121). He also testified that he

would continue to assist the government and conceivably ask the government to file

another Rule 35 motion (See 124a).

               At the conclusion of testimony but before determining the departure, the

district court said:

                       THE COURT: Okay. As we’re all aware, it’s been four years, I
                       guess, since I dealt with this sentencing. I have gone through the
                       pre-sentence report. I would like an opportunity to consult with Mr.
                       Vought who was the writer of the pre-sentence report. So we’re
                       going to take a 15 minute recess at this time and then we’ll
                       reconvene.

                       THE CLERK: Court is in recess for 15 minutes.

                              (Recess was taken from 10:13 a.m. to 10:28 a.m.)

No objection was made to this consultation. The court obviously wanted to review the

background of the case before determining what, if any, reduction to give Appellant.

Clearly, this is not plain error.2


2. In United States v. Aspinall, 389 F.3d 332, 348-349 (2nd Cir. 2004), the court referred
to the probation department as follows:
        . . . the Probation Department is an arm of the court. See, e.g., United States v.
        Reyes, 283 F.3d 446, 455 (2d Cir. 2002), cert denied, 537 U.S. 822, 123 S.Ct. 106,
        154 L.Ed.2d 31 (2002). We have noted that the probation officer is a
        “confidential adviser to the court, . . . the court’s ‘eyes and ears’, a neutral
        information gatherer with loyalties to no one but the court.” Id. (internal
                                              4
              Next, the use of the four-year old presentence report poses no Blakely

issues in this case where all objections to it were resolved at the original sentencing

hearing (See App. 63(a)(1),(2)). Moreover, the Appellant admitted to the facts that drove

up his guideline calculation, including what he admitted during the cooperation phase,

the use of which is permitted during the sentencing phase under paragraph 22 of the plea

agreement (App. 37(a), 37(b)).

              Finally, Appellant never raised a Sixth Amendment claim before the district

court or on appeal and cannot do so now. United States v. Pultrone, 241 F.3d 306, 307

(3d Cir. 2001).

              Based on the foregoing, we will affirm the judgment of the district court

filed and entered on April 20, 2004, wherein the court ordered that the period of

imprisonment imposed in this case on October 13, 2000, of twenty (20) years), is reduced

to a period of imprisonment of eighteen and one-half (18 ½) years.




       quotation marks omitted). As such, the probation officer is “often the most
       appropriate person [ ] to bring to the attention of the court . . . an offender’s
       conduct that is threatening to the public.” Id. at 457 (internal quotation marks
       omitted). Accord United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998)
       (“Because of the close working relationship between the probation officer and the
       sentencing court, the probation officer may communicate ex parte with the district
       court.” (internal quotation marks omitted)).
                                              5
