U.S. v. Burgin

• Citation: 388 F.3d 177
• Decision Date: 03 November 2004
• Docket Number: No. 03-3577.,03-3577.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danny BURGIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

388 F.3d 177

UNITED STATES of America, Plaintiff-Appellee, v. Danny BURGIN, Defendant-Appellant.

No. 03-3577.

United States Court of Appeals, Sixth Circuit.

Argued: June 16, 2004.

Decided and Filed: November 3, 2004.

Appeal from the United States District Court for the Southern District of Ohio, Sandra S. Beckwith, Chief Judge.

ARGUED: Jason M. Cohen, Keating, Muething & Klekamp, Cincinnati, OH, for Appellant. Amul R. Thapar, United States Attorney, Cincinnati, OH, for Appellee.

ON BRIEF: Jason M. Cohen, Keating, Muething & Klekamp, Cincinnati, OH, for Appellant. Amul R. Thapar, United States Attorney, Cincinnati, OH, for Appellee.

Before: KRUPANSKY and COLE, Circuit Judges; COOK, District Judge.^*

OPINION

COOK, District Judge.

The Appellant, Danny Burgin, appeals the conviction and sentence that were imposed upon him following the entry of his plea of guilt to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and violating 18 U.S.C. § 924(e), the Armed Career Criminal Act (ACCA). A violation of § 922(g)(1) carries a statutory maximum sentence of ten years. However, he was sentenced by the district court to a term of imprisonment of 180 months (fifteen years), pursuant to the statutory minimum sentence of the ACCA. Although Burgin concedes that he violated § 922(g)(1), and has three prior convictions for violent felonies, he contends in this appeal that the determination of whether his prior felony convictions were "committed on occasions different from one another" is a factual determination, i.e., an element of the offense, which the United States (the Government) was required to plead in the Indictment, submit to a jury and prove beyond a reasonable doubt. In Burgin's view, the Government's failure to include this element in the Indictment constitutes reversible error under the standard that was established by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

I

This case arises out of a series of events that occurred in May 2002. During a four day period of May 13th through May 17th in 2002, Burgin agreed to supply a confidential informant with five ounces of cocaine. On May 17th, the informant entered Burgin's residence and gave him $1,000 in marked currency in exchange for 27.66 grams of cocaine. Soon thereafter, Burgin, after leaving his home in a vehicle, was stopped by law enforcement officers in a marked police car. The officers arrested Burgin, advised him of his Miranda rights, and discovered that he had possession of $950 in marked currency and 110.67 grams of powder cocaine.

During his interrogation at the police station, Burgin disclosed to the officers that he also kept a gun in a closet at his home. After obtaining a search warrant, the officers conducted a search of his home where they uncovered a .38 caliber Rossi revolver, 228.51 grams of powder cocaine, 17.41 grams of cocaine base (crack cocaine), and 6.67 grams of marijuana.

On July 10, 2002, a grand jury indicted Burgin on four counts, including alleged violations of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e). On November 20, 2002, Burgin entered into an agreement with the Government, in which he agreed to plead guilty to Counts One and Three of the Indictment in exchange for the dismissal of Counts Two and Four. The statement of facts attached to the plea agreement stated:

before May 17, 2002, the defendant was convicted of three violent felonies as defined under Title 18, United States Code, Section 924(e). Those violent felonies are as follows: (1) Aggravated Armed Robbery in Case Number 00750331-B-01 in the Hamilton County Court of Common Pleas; (2) Aggravated Robbery in Case Number 77-CR-081B in the Portage County Court of Common Pleas; and (3) Aggravated Robbery in Case Number 77-CR-082B in the Portage County Court of Common Pleas.

J.A. at 24-25.

The Government also filed a pleading in which it set forth the elements of the offenses that had been charged against Burgin in Counts One and Three of the Indictment. This document outlined the elements of 18 U.S.C. §§ 922(g)(1) and 924(e), and included a statement "that the defendant had three previous convictions for a violent felony or a serious drug offense."

During a plea hearing before the district court on November 22, 2002, Kyle Ingram, a Specialist in the Cincinnati Police Department's Regional Narcotics Unit, testified that Burgin had been "convicted of three violent felonies as defined under Title 18, United States Code, Section 924(c)." Id. at 88-89, 120 S.Ct. 2348. He then enumerated the same three convictions that had been set forth as part of the plea agreement. Thereafter, the Court, after summarizing Ingram's statements, asked Burgin whether these representations were correct. Burgin replied, "yes." Id. at 90, 120 S.Ct. 2348. Burgin was also asked if there was "anything that [Ingram had] said or anything that [the Court had] said in the summary that is in any fashion incorrect?" Burgin responded, "no, everything's correct." Id.

Prior to the sentencing hearing, Burgin received a Presentence Report, which discussed two of his prior convictions, both of which had been prosecuted in Portage County, Ohio, as follows

The Indictment for Case Number 77CR0081(B) originally charged Reginald Meyers, Gregory Farmer, Marshall Motley, Thomas Harrison, and the defendant with Aggravated Robbery, Kidnaping, Carrying a Concealed Weapon, and Petty Theft. The Indictment alleged that the defendant and his co-defendants kidnaped John Caplan and Linda Dipon while in possession of a .22 caliber pistol and stole a stereo record player on March 31, 1977.

The Indictment in Case Number 77CR0082(B) charged Reginald Meyers and the defendant with Aggravated Robbery, Kidnaping, Felonious Assault, and Grand Theft. It alleged that Meyers and Burgin forcefully removed John Caplan, Jeff Lauter and Linda Flannigan from the place where they were found (inflicting serious physical harm to John Caplan) and stole watches, clothes, and rings valued at over $150. Burgin was sentenced to 7 to 25 years imprisonment on each count to be served concurrently.

Id. at 55. Burgin objected to the inclusion of this paragraph in the Presentence Report, contending that his two Portage County convictions should have been treated as one course of conduct. The Probation Officer recorded Burgin's objection in the Presentence Report, and stated "the defendant notes that the crimes in Portage County, Ohio occurred within days of each other. They were consolidated for sentencing, and the defendant was sentenced to concurrent 7 to 25 year terms of imprisonment." Id. at 66. The Probation Officer also wrote that the "defendant maintains the matters were obviously indicted together, as the case numbers are sequential. One sentence was served, which implies that the Trial Court treated them as two acts with a single animus or as one course of conduct." Id.

At the sentencing hearing on April 7, 2003, the district court acknowledged Burgin's objection, saying, in part, that he "argues that the Aggravated Armed Robbery conviction[s] should be treated as one." Id. at 28. However, the Court overruled his objection and concluded that he had "pleaded guilty to [violating] those two statutes [(namely, §§ 922(g) and 924(e))] and he cannot avoid the mandatory minimum sentence that is the consequence." Id. at 35.

II

The parties do not agree upon the standard of review that should be applied by this Court. Burgin argues that his Apprendi challenge was properly preserved in the district court and should be subjected to a de novo standard of review. On the other hand, the Government contends that Burgin's failure to object to his sentence on constitutional grounds compels an appellate review for plain error of the sentence.

This Circuit has recently determined that an "Apprendi challenge will be reviewed for plain error where, although the defendants objected in the district court to the quantity of drugs attributed to them for sentencing, they failed to raise in the district court objections based on Apprendi or Jones v. United States." United States v. Lopez, 309 F.3d 966, 969 (6th Cir.2002). In support of his position, Burgin cites United States v. Stines, 313 F.3d 912, 917 (6th Cir.2002), in which we relied upon United States v. Strayhorn, 250 F.3d at 462, 467 (6th Cir.2001), and held that "[i]n order to preserve an Apprendi challenge, the defendants need not `utter the words "due process"' as long as it is well known that they dispute the district court's factual findings as to drug quantity." However, in deciding Lopez, we distinguished Strayhorn on the ground that Apprendi had not been decided when the Strayhorn defendants were tried and sentenced. See Lopez, 309 F.3d at 969. Similarly, in Stines, we noted that "[i]t would have been impossible for the defendants to have intentionally relinquished or abandoned their Apprendi based claims considering Apprendi was decided after they were sentenced." Stines, 313 F.3d at 917. Unlike the defendants in Strayhorn and Stines, the sentence was imposed upon Burgin on April 7, 2003 after Apprendi had been decided. Burgin cannot assert that Apprendi was not the law at the time of this sentencing. As such, his reliance upon Stines is misplaced.

Therefore, we must now review the decision of the district court for plain error. See Fed.R.Civ.P. 52(b). Under the plain error test, "before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights." United States v. Cotton, 535 U.S. 625, 631-632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (internal citations omitted). "If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.

III

The Government initially...