Burnett v. United States

Decision Date27 June 2022
Docket NumberC22-0361JLR
PartiesKENNETH R BURNETT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — Western District of Washington
ORDER

JAMES L. ROBART United States District Judge

I. INTRODUCTION

Before the court is Petitioner Kenneth R. Burnett's motion to vacate judgment pursuant to 28 U.S.C. § 2255. (Mot (Dkt. # 1); Reply (Dkt. # 11).) Respondent the United States of America (the Government) opposes the motion. (Resp. (Dkt. # 10).) The court has considered the parties' submissions, the balance of the record, and the applicable law. Being fully advised, the court DENIES Mr Burnett's motion.

II. BACKGROUND

Mr. Burnett is a 50-year-old inmate who is currently detained at Federal Correctional Institution-Phoenix (“FCI-Phoenix”). (See Resp. at 4; Presentence Investigation Report (“PSR”) (CR[1] Dkt. # 28 (sealed)) at 2.) On January 3, 2017, two individuals working undercover with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”)-a confidential informant (“CI”) and an ATF agent-met Mr. Burnett at his residence to acquire a firearm. (PSR at 3-4.) Mr. Burnett showed them a loaded 12-gauge shotgun, a Norinco SKS rifle, and a Star Firestar 9-millimeter pistol. (Id. at 4.) At the same time, the CI discussed purchasing a half-ounce of heroin from Mr. Burnett. (Id.) After Mr. Burnett agreed to sell the CI a half-ounce of heroin, the CI paid Mr. Burnett and then returned later that day-again with the undercover agent-to pick up the heroin. (Id.) Approximately a week later, the ATF executed a search warrant on Mr. Burnett's property and arrested Mr. Burnett. (Id.) During his arrest, ATF agents seized 15.6 grams of methamphetamine, 0.8 grams of heroin, a Norinco SKS rifle, a Star Firestar 9-millimeter pistol, 200 bullets, and two digital scales. (Id.) Mr. Burnett was indicted on one count of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); and one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (See generally Indictment (CR Dkt. # 11).)

On April 20, 2017, the parties entered into a plea agreement. (See generally (Plea Agreement (CR Dkt. # 24).) As part of the plea agreement, the Government agreed not to prosecute the possession of a firearm in furtherance of a drug trafficking crime charge. (See generally Superseding Information (CR Dkt. # 20); Resp. at 4; Plea Agreement.) Accordingly, Mr. Burnett pleaded guilty to one count of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (See Plea Agreement ¶ 2.) Pursuant to the terms of the plea agreement, the Government agreed to recommend no more than 15 years of incarceration, and Mr. Burnett agreed to recommend no less than 10. (See id. ¶ 14.)

The U.S. Probation Office found Mr. Burnett's total offense level to be 25 based on several factors, including: a base offense level of 24; a two-level upward deviation for the possession of three firearms; a two-level upward deviation for maintaining premises for the purpose of manufacturing or distributing a controlled substance; and a three-level downward deviation for acceptance of responsibility. (See PSR at 6.) It further found Mr. Burnett's criminal history category to be III based on his: (1) 2002 conviction for carrying and possessing a firearm in furtherance of a drug trafficking crime; and (2) 2013 conviction for possession of heroin. (See id. at 7-10.) Thus, it calculated Mr. Burnett's sentencing guidelines range as 70-87 months. (See id. at 13.)

In its presentence report, the U.S. Probation Office also acknowledged the significant benefits that Mr. Burnett received through the Government's “exercise of charging discretion” in the plea agreement. (Id. at 14.) It noted that had Mr. Burnett been convicted of the § 924(c) count (possession of firearm in furtherance of drug trafficking) that the Government agreed to dismiss, “it would be his second [§ 924(c)] conviction and, thus, the mandatory minimum prison sentence would have been 25 years, which would have been required to run consecutively to the drug offense charged in [Count 1] (a five-year mandatory minimum sentence offense).” (Id.) Thus, “Mr. Burnett, by virtue of the plea agreement, . . . avoided a 30-year mandatory minimum sentence (or more had an additional § 924(c) count been charged as it could have been).” (Id.)

On September 5, 2017, the court sentenced Mr. Burnett to 10 years of imprisonment and five years of supervised release.[2] (Judgment (CR Dkt. # 40); 9/5/17 Min. Entry (CR Dkt. # 39).) Mr. Burnett did not appeal. (See generally CR Dkt.) He was remanded into custody following his sentencing hearing, and his projected release date is October 22, 2025. (See Judgment at 2; Comp. Release Memo. (CR Dkt. # 54 (sealed)) at 1; Resp. at 4.)

On June 18, 2020, Mr. Burnett filed his first motion pursuant to 28 U.S.C. § 2255, seeking to vacate his conviction for felon in possession of a firearm based on Rehaif v. United States, ___ U.S. ___, 139 S.Ct. 2191 (2019). See 2255 Mot., Burnett v. United States, No. C20-0947JLR, Dkt. 1. After the Supreme Court's decision in Greer v. United States, ___ U.S. ___, 141 S.Ct. 2090 (2021), the court granted the parties' joint motion to dismiss Mr. Burnett's first § 2255 motion. 6/30/21 Order, Burnett, No. C20-0947JLR, Dkt. 14.

Mr. Burnett filed the instant 28 U.S.C. § 2255 motion on March 25, 2022.[3] (See generally Mot.) He argues that he is entitled to relief because his federal sentencing guidelines calculation was based on a state conviction that has since been vacated on constitutional grounds. (See id. at 1 (claiming that he is entitled to relief “on constitutional error grounds and/or because the sentence ‘is otherwise subject to collateral attack' under § 2255(a)).) The vacatur and dismissal of his 2013 conviction for possession of heroin “eliminates two of his five criminal history points, reducing his criminal history category from III to II and his advisory guidelines range from 70 to 87 months to 63 to 78 months.” (Id.) Mr. Burnett thus asks the court to vacate his sentence, “schedule a resentencing hearing,” and “resentence him using the correct advisory guideline[s] range.” (Id. at 6.)

The Government argues that court cannot reach the merits of Mr. Burnett's motion because his habeas claim is procedurally defaulted. (Resp. at 5-6.) If the court finds that Mr. Burnett can overcome his default, the Government “concedes that, on these facts, [Mr.] Burnett can attack the judgment of this [c]ourt.” (Id. at 7.) However, the Government argues that “rather than affording [Mr.] Burnett a plenary resentencing, the [c]ourt should correct [Mr.] Burnett's sentence by revising his criminal history category and Guidelines range, updating the Statement of Reasons, . . . reimposing the 10-year sentences,” and directing “U.S. Probation to amend the [presentence report] to reflect” Mr. Burnett's vacated state conviction. (Id. at 11.)

III. ANALYSIS

The court begins by addressing the legal standard for motions under 28 U.S.C. § 2255. It then discusses whether Mr. Burnett has met § 2255's statutory prerequisites before turning to the issue of whether Mr. Burnett's claim is procedurally defaulted and whether he is entitled to a certificate of appealability.

A. Legal Standard for Motions Under 28 U.S.C. § 2255

A petitioner seeking relief under 28 U.S.C. § 2255 must prove the existence of an error rendering his conviction unlawful. See Simmons v. Blodgett, 110 F.3d 39, 42 (9th Cir. 1997); see also Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938); Bell v. United States, No. C19-2018JCC, 2020 WL 3542503, at *2 (W.D. Wash. June 30, 2020). A prisoner in custody for a federal law violation may move to vacate, set aside, or correct the sentence under four circumstances: where (1) “the sentence was imposed in violation of the Constitution or laws of the United States”; (2) “the court was without jurisdiction to impose such sentence”; (3) “the sentence was in excess of the maximum authorized by law”; or (4) the sentence is otherwise “subject to collateral attack.” 28 U.S.C. § 2255(a).

Pursuant to § 2255(f), a petition for habeas relief must be brought within one year of: (1) “the date on which the judgment of conviction became final”; (2) “the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action”; (3) “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review”; or (4) “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” See id. § 2255(f)(1)-(4).

B. Timeliness and Other Statutory Prerequisites

As a threshold matter, Mr. Burnett has met the statutory prerequisites. Because Mr. Burnett is currently incarcerated he meets § 2255's “custody” requirement. See Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir. 2002). In addition, Mr. Burnett timely filed the instant motion under § 2255(f)(4).[4] Mr. Burnett's motion is predicated on the Snohomish County Superior Court's September 16, 2021 vacatur of one of his prior convictions. (Mot. at 1; id., Ex. 1 (“Vacatur Order”).) Mr. Burnett diligently sought vacatur of that conviction once the...

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