Burrell v. U.S.

• Citation: 467 F.3d 160
• Decision Date: 18 October 2006
• Docket Number: Docket No. 05-2945-cr.
• Parties: Stanley BURRELL, Defendant-Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

467 F.3d 160

Stanley BURRELL, Defendant-Appellant, v. UNITED STATES of America, Appellee.

Docket No. 05-2945-cr.

United States Court of Appeals, Second Circuit.

Argued: March 3, 2006.

Decided: October 18, 2006.

Jane Simkin Smith, Millbrook, New York (Stanley Burrell, pro se, White Deer, Pennsylvania), for Defendant-Appellant (on submission).

Jason A. Jones, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, on the brief; Alyssa A. Qualls, Assistant United States Attorney, of counsel), Brooklyn, New York, for Appellee.

Before: CARDAMONE, WALKER and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge:

The question presented by this appeal is whether defendant-appellant Stanley Burrell's criminal judgment became final after the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), thus entitling him to the retroactive application to his sentence of the new constitutional rule announced in Booker. To answer this question, we must first determine how the finality of Burrell's criminal judgment was affected by our ruling on his previous appeal in which we affirmed his conviction and sentence on one count but remanded the case to the district court to "correct the judgment to reflect dismissal" of another count for which he was also convicted and sentenced. This determination turns on whether our remand was strictly ministerial in that it required a routine, nondiscretionary act by the district court that could not have been appealed on any valid ground, or whether our mandate left the district court the authority on remand to entertain the new arguments Burrell advanced. For the reasons that follow, we hold that our remand for the entry of an amended judgment was strictly ministerial and that Burrell's conviction therefore became final for purposes of direct review either when the Supreme Court denied his untimely petition for a writ of certiorari or when the time for filing such a petition expired. In either case, Burrell's conviction was final before the district court acted on remand and before the Supreme Court decided Booker. Burrell may therefore advance the claim that he should be resentenced under advisory Sentencing Guidelines pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005), only on collateral review via a motion pursuant to 28 U.S.C. § 2255.

BACKGROUND

As we described in our previous opinion and summary order in this case, following a jury trial in February 1999, Burrell was convicted of conspiring to distribute crack cocaine and heroin and being the organizer of a continuing criminal enterprise ("CCE"). United States v. Burrell, 289 F.3d 220, 223 (2d Cir.2002); United States v. Burrell, 43 Fed.Appx. 403 (2d Cir.2002). In April 2000, the district court entered judgment against Burrell, sentencing him principally to two concurrent life sentences on the conspiracy and CCE convictions. The district court found Burrell's total offense level on the two counts of conviction to be 44 with a criminal-history category of six, which the court noted required it "to impose a sentence of life imprisonment" on each count. The record reveals that, at the time Burrell was sentenced, the Sentencing Guidelines required the district court to impose a sentence of life imprisonment for the CCE conviction alone regardless of Burrell's conspiracy conviction given his adjusted offense level of 44 on the CCE count.

On appeal, we affirmed Burrell's conviction on the CCE charge but vacated his conviction for conspiracy because it was a lesser included offense of the CCE conviction. Burrell, 43 Fed.Appx. at 408 (citing Rutledge v. United States, 517 U.S. 292, 297-301, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996)). We also rejected Burrell's challenge to his sentence on the CCE count under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because, "[e]ven in the absence of a jury finding on narcotics quantity, the court properly could have sentenced Stanley Burrell to life imprisonment on the CCE count." Burrell, 289 F.3d at 225. We thus affirmed Burrell's conviction and sentence on the CCE count, id. at 226, and remanded "in order that the district court may correct the judgment to reflect the dismissal of only the conspiracy conviction," Burrell, 43 Fed.Appx. at 408. After denying Burrell's petition for rehearing en banc by order dated August 20, 2002, we issued a mandate on September 25, 2002, directing the district court to correct its judgment. Burrell thereafter filed a petition for writ of certiorari with the United States Supreme Court on January 30, 2003,¹ which was denied on March 24, 2003.² Burrell v. United States, 538 U.S. 937, 123 S.Ct. 1602, 155 L.Ed.2d 339 (2003).

On remand approximately two years later, by order dated March 29, 2005, the district court directed the clerk of the court to file an amended judgment reflecting our dismissal of the conspiracy claim. In a letter dated April 14, 2005, certified as delivered to prison officials on April 18, 2005, and filed with the district court on April 25, 2005, Burrell argued that the district court's March 2005 order should be corrected in the light of Booker. On April 20, 2005, the district court's clerk's office, acting on the March 2005 order, entered an amended judgment stating that Burrell's conspiracy charge was dismissed pursuant to our mandate. The district court subsequently summarily denied Burrell's request to "correct the judgment" in the light of Booker.

This timely appeal followed.

DISCUSSION

Burrell challenges the district court's amended judgment, which embodies a sentence imposed by the district court under Sentencing Guidelines that were mandatory at the time of his sentencing in April 2000, as violating his Sixth Amendment rights under Booker. Burrell contends that his judgment of conviction was not final at the time Booker was decided and that Booker's rule therefore applies in his case because under the Supreme Court's ruling in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, ... [whose judgments are] not yet final," id. at 328, 107 S.Ct. 708.

This case requires us to determine whether a criminal judgment is final when we have affirmed a defendant's conviction and sentence on at least one count, but remanded for the district court to dismiss the defendant's conviction and sentence on another count. In order to resolve this question, we must consider the interplay between the law governing the finality of criminal judgments and the "mandate rule," a branch of the law-of-the-case doctrine. Both questions. here—whether a criminal judgment is final and whether our mandate foreclosed the district court from exercising discretion—present issues of law over which we have plenary review. See United States v. Camacho, 370 F.3d 303, 305 (2d Cir.2004) (stating that whether a criminal judgment is final for purposes of Federal Rule of Criminal Procedure 33 is a question of law subject to de novo review). Because we conclude that our mandate required only a ministerial act, Burrell's conviction was final, at the latest, when the Supreme Court denied his untimely petition for a writ of certiorari on March 24, 2003, before the district court acted on remand and before the Supreme Court decided Booker. Burrell may therefore advance his Booker claim, if at all, in a motion pursuant to 28 U.S.C. § 2255.

I. Finality

The Supreme Court has made clear that "[a] judgment of conviction includes both the adjudication of guilt and the sentence." Deal v. United States, 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993); Teague v. Lane, 489 U.S. 288, 314 n. 2, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ("As we have often stated, a criminal judgment necessarily includes the sentence imposed upon the defendant."); Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937) ("Final judgment in a criminal case means sentence. The sentence is the judgment."). A criminal judgment becomes final for purposes of appellate review, therefore, "after the district court sentences the defendant and `disassociates itself from the case.'" Camacho, 370 F.3d at 306 (quoting Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003)). Moreover, when a defendant is convicted at one trial on multiple counts of an indictment, the district court enters a single judgment of conviction. See Fed.R.Crim.P. 32(k).

Of course, "[f]inality is variously defined," and "its precise meaning depends on context." Clay, 537 U.S. at 527, 123 S.Ct. 1072. In Camacho, we discussed finality for purposes of Federal Rule of Criminal Procedure 33, which formerly provided that a motion for a new trial based on newly discovered evidence was timely as long as it was filed "before or within two years after final judgment." Fed.R.Crim.P. 33 (amended 1998). We held that a conviction is final for these purposes following the affirmance on appeal of the adjudication of guilt, notwithstanding a remand for resentencing, because "[a] defendant's ability to bring newly discovered evidence to light in a new trial in no way hinges on the fate of the sentence imposed on his or her original conviction." 370 F.3d at 307. With respect to motions to vacate under 28 U.S.C. § 2255, which may be filed within one year from "the date on which the judgment of conviction becomes final," we noted that it "makes sense, from an efficiency standpoint, to require criminal defendants to file such motions only after both their convictions and sentences have withstood appellate scrutiny." Id. We subsequently noted that a judgment of conviction becomes final for purposes of § 2255 "when the Supreme Court `affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or...