U.S. v. Burns

• Decision Date: 20 August 2009
• Docket Number: No. 04-2901.,No. 04-2933.,04-2901.,04-2933.
• Citation: 577 F.3d 887
• Parties: UNITED STATES of America, Appellant, v. Travis Ray BURNS, Appellee. United States of America, Appellee. v. Travis Ray Burns, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

577 F.3d 887

UNITED STATES of America, Appellant, v. Travis Ray BURNS, Appellee.

United States of America, Appellee. v. Travis Ray Burns, Appellant.

No. 04-2901.

No. 04-2933.

United States Court of Appeals, Eighth Circuit.

Submitted: September 24, 2008.

Filed: August 20, 2009.

Shawn Wehde, AUSA, argued, Sioux City, IA, for appellant.

R. Scott Rhinehart, argued, Sioux City, IA, for appellee.

Before LOKEN, Chief Judge, BRIGHT, WOLLMAN, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, En Banc.

WOLLMAN, Circuit Judge.

This case is once again before our court, this time by virtue of a remand from the Supreme Court for reconsideration of our en banc opinion in light of Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). See Burns v. United States, ___ U.S. ___, 128 S.Ct. 1091, 169 L.Ed.2d 804 (2008). Having completed our reconsideration, we now affirm.

I. Background

As set forth in our initial review of this case, United States v. Burns, 438 F.3d 826 (8th Cir.2006) (Burns I), Travis Ray Burns was indicted on one count of conspiracy to manufacture and distribute fifty grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Burns was subject to a mandatory life sentence under the enhanced penalty provided by 21 U.S.C. § 851. Absent the § 851 enhancement, Burns faced a sentencing range of 188 to 235 months' imprisonment. In return for Burns's cooperation, the government agreed to move for a downward departure under United States Sentencing Guidelines § 5K1.1 and 18 U.S.C. § 3553(e).¹

The government advised the district court² at sentencing that Burns had immediately admitted his involvement in the conspiracy and provided detailed information during two separate debriefing sessions regarding the several groups that were involved in manufacturing methamphetamine. Burns twice testified before the grand jury and provided information in several ongoing investigations. His cooperation assisted the government in establishing drug quantity evidence against one defendant, Brad Messerly, and he was a key witness against Victor DeFoe, which enabled the government to obtain an indictment against and secure a plea of guilty from DeFoe. The government characterized Burns's cooperation as timely, truthful, and complete, and recommended a 15 percent reduction from the otherwise applicable 360-month sentence. Burns I, 438 F.3d at 827-28.

The district court rejected the government's recommendation and imposed a sentence of 144 months' imprisonment, which reflected a 60 percent reduction from the 360-month sentence. Id. at 828. We set forth at length the district court's explanation of its considerations of the § 5K1.1 factors:

I'm going to use 360 months as a starting point. In this case I specifically find under the 5K1.1 factors, factor number 5, the timeliness of the defendant's assistance, the defendant was exceptionally timely in this case. My understanding is he started cooperating as soon as he was arrested. To me that's exceptional timeliness. While some defendants start that early, virtually no defendants start earlier than that....

So I find that his timeliness was exceptional and apparently started cooperating before he was advised of the impact of the United States Sentencing Guidelines, before he knew anything about how the guidelines might affect his sentence, before he exercised his Sixth Amendment right to have counsel present. So I think in this case the fifth factor weighs very heavily in favor of the defendant ...

Number 4 does not apply, any injury suffered or danger of risk because I haven't heard anything about that.

Number 3, the nature and extent of the defendant's assistance, in this case based on the representations of the assistant U.S. attorney, I find that the defendant provided every single bit of information he knew, so you couldn't—the extent of the defendant's assistance could not be greater in the sense that he provided all of the information he knew.

Now, it's true that some defendants have greater information which leads to indictments of more people. But I don't think that's necessarily the test. I think the test is did the defendant provide substantial assistance on everything he knew, and in this case he did. So the defendant scores very highly on the third prong.

Defendant scores very highly on the second prong, truthfulness, completeness, and reliability of the information. There's no information that the defendant's substantial assistance was anything but a hundred percent complete, a hundred percent truthful, and a hundred percent reliable. So Mr. Burns scores very highly on the second prong.

On—the first prong is the Court's evaluation of significance and usefulness of the defendant's usefulness taking into consideration the government's evaluation of the assistance rendered. Here the government has indicated that the defendant testified twice in front of the grand jury, that he established the drug quantity on one defendant and led to the indictment and guilty plea of another defendant. I find that that was both very significant and very useful.

Now for some reason which the government refuses to disclose, they only recommend 15 percent, but they won't tell me why they only recommend 15 percent. And the government refuses to indicate how any one of the five 5K1.1 factors affect the 15 percent recommendation.

So while I do take into consideration the government's evaluation of the significance and usefulness, it's hard to put any weight on the 15 percent recommendation because the government refuses to disclose how they arrive at that recommendation.

And looking back on the other sentencings that I've had, that recommendation is in my view substantially lower than other recommendations the government has made for similarly situated defendants.

Having said all that, I have the independent right under 5K1.1 to evaluate the substantial assistance based on the 5K1 factors as I see it.

Having taken into consideration the fact that the defendant scores very, very highly on the second factor, the third factor, and the fifth factor, I'm going to reduce the defendant's sentence substantially beyond what the government recommends in this case. That ought to come as no surprise to the government because I have a ten-year history of doing that because I just evaluate the five factors differently than-than how the government does, and the government refuses to disclose how they do it to me.

Id. at 828-29 (quoting Sent. Tr. at 12-15).

The government appealed the sentence, contending that the district court had ignored its recommendation of a 15 percent reduction and that the 60 percent reduction was excessive in light of the assistance Burns had provided. Burns cross-appealed, contending that the district court should have departed from the 188 to 235-month guideline range rather than from the 360-month presumptive life sentence. Id. at 829.

A divided panel of this court affirmed the downward departure awarded by the district court and unanimously affirmed the district court's use of the 360-month presumptive life sentence as its departure point. Id. at 831.

We granted the government's petition for en banc rehearing and vacated the panel opinion. On rehearing, we reversed the district court's departure and affirmed its starting point. United States v. Burns, 500 F.3d 756 (8th Cir.2007) (en banc) (Burns II).

In reversing the departure, we noted that "[d]epartures under § 5K1.1 and reductions under § 3553(e) should not be untethered from the structure of the advisory guidelines." Burns II, 500 F.3d at 761 (quoting United States v. Saenz, 428 F.3d 1159, 1162 (8th Cir.2005)). We also noted that "[b]ecause departures and reductions based on § 5K1.1 and § 3553(e) appear contextually within a scheme designed `to reduce unwarranted sentence disparities among similar defendants' ... and because the Sentencing Commission's sentence adjustments for mitigating or aggravating factors fall close to the recommended guidelines, `[a]n extraordinary reduction must be supported by extraordinary circumstances.'" Id. at 761 (quoting Saenz, 428 F.3d at 1162).

We also referred to an earlier holding that "`the farther the district court varies from the presumptively reasonable guidelines range, the more compelling the justification ... must be.'" Id. at 761 (quoting United States v. McMannus, 436 F.3d 871, 874 (8th Cir.2006)). We concluded our summary of our previous holdings by saying, "In sum, our extraordinary reduction/extraordinary circumstances formulation requires circumstances of a strength proportional to the extent of the deviation from reductions envisioned by the guidelines's structure.... [U]nder this proportionality standard, Burns's ten-level and 60 percent reduction exceeds the bounds of reasonableness." Id. at 761-62.

We then went on to acknowledge that

the appropriate degree of sentencing reduction cannot be calculated with mathematical precision and that there is a range of reasonableness available to the district court in any given case.... It may be that we have placed too great an emphasis on numerical or percentage lines in conducting the reasonableness inquiry with respect to sentencing reductions .... It may also be that the use of the term "extraordinary" suggests a false dichotomy. The term as applied to reductions should not be read to suggest a true dichotomy in which the location of an imaginary line demarcating "ordinary" from "extraordinary" may be divined by a statistical inquiry. Rather than representing a term of art with unique legal significance, the "extraordinary" label more accurately serves as a convenient characterization of departures that we have considered particularly large relative to the two to four offense level adjustments generally envisioned by the structure of the sentencing guidelines for mitigating or aggravating circumstances.

Id. at...