United States v. Burden, Docket Nos. 15-1080
| Decision Date | 19 June 2017 |
| Docket Number | 15-1183,August Term, 2016,Docket Nos. 15-1080 |
| Citation | 860 F.3d 45 |
| Parties | UNITED STATES of America, Appellee, v. Kelvin BURDEN, aka Waffle, aka Uncle, aka Unc, Jermaine Buchanan, aka Ski, Defendants-Appellants, Terrence Boyd, Todd Summerville, Anthony Burden, aka Tony, aka Mackey, Willie Prezzie, aka Dog, aka Prez, Anthony Buchanan, aka Jungle, Terrence Thompson, aka Creed, Michael Sawyer, aka Michael Moss, Terra Nivens, aka Stink, aka Stinkfinger, Frank Knight, aka Groovy, aka Ace, Dwight Maschek, aka Shorty, Jermaine Martin, aka Psycho, Andre McClendon, aka Popsicle, Michael Glenn, aka Rockafella, Robert Jones, aka Swinger, David M. Burden, aka DMX, aka X, David L. Burden, aka Quinten, aka Sid, Joseph Daniels, aka Digital, Lavon Godfrey, Alvin White, aka Uncle Lee, Andre Dawson, aka Yup Yup, Jeffrey Fredericks, aka JL, aka Dahmer, Jahod Nash, aka Hottie Jig, Mark Caldwell, aka Lt. Sparks, Kevin Hamlette, aka Fresh, Patrice St. Surin, aka Patrick, aka Watty Wat, Ernest Eugene Weldon, aka Gene, aka Mean Gene, aka Mean One, Thomas Holman, aka Uno, Adam Sanders, aka AD, Kendal Mullins, aka K-Nice, Thomas Fagan, Joseph Darden, Jeffrey Lockhart, Lamont Brown, aka L, St. Clair Burden, aka Gowser, aka GP, aka Boo Boo, Cedric Burden, aka Sid, Antonio Williams, aka Lo Lo, Angel Cabrera, aka Cheeks, Keith Lyons, aka Papa Large, aka Pops, Barney Burden, aka Rock, aka Buddy, aka Buddy Rock, Demetrius Story, Leslie Wayne Carlos, aka Cheetah, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert M. Spector (Marc H. Silverman, on the brief), Assistant United States Attorneys, for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, CT.
Harry Sandick , Patterson Belknap Webb & Tyler LLP, New York, NY, for Kelvin Burden.
Marsha R. Taubenhaus , Law Offices of Marsha R. Taubenhaus, New York, NY, for Jermaine Buchanan.
Before: Katzmann, Chief Judge, Kearse and Livingston, Circuit Judges.
Judge Kearse concurs in a separate opinion.
In 2003, a jury convicted defendants-appellants Kelvin Burden and Jermaine Buchanan of, among other things, racketeering, violent crimes in aid of racketeering, and conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base and five kilograms or more of cocaine. Both men were sentenced to life imprisonment. After exhausting their direct appeals, both defendants brought habeas petitions to vacate their convictions pursuant to 28 U.S.C. § 2255. In October 2014, each defendant entered into a "Stipulation for Resentencing" with the government, in which the defendants agreed that they would withdraw their habeas petitions in exchange for being resentenced based on a binding range of 262–365 months' imprisonment. The district court (Hall, J. ) resentenced both Burden and Buchanan to 365 months' imprisonment and to life terms of supervised release.
On appeal, both defendants argue that the district court erred in (1) failing to advise them before accepting their stipulations that they faced terms of supervised release and (2) imposing life terms of supervised release without adequate explanation. The government asserts that the defendants waived their right to appeal in the resentencing stipulations. We hold that the appeal waivers are enforceable, but we construe them narrowly so as not to encompass the defendants' appeals of their terms of supervised release. On the merits, we decline to resolve whether the district court erred in failing to advise the defendants that they faced terms of supervised release, because even assuming that it did, the error was not plain. Plain error was committed, however, when the district court implicitly hinged the defendants' life terms of supervised release on the need for retribution—an imperative that is relevant to fashioning a term of incarceration, but not to fashioning a term of supervised release.
Accordingly, we VACATE the defendants' terms of supervised release, RE MAND for resentencing as to supervised release, and AFFIRM the judgments in all other respects.
From 1997 to 2001, Kelvin Burden and Jermaine Buchanan () participated in a cocaine trafficking conspiracy, operated out of Norwalk, Connecticut. Burden supervised the conspiracy and Buchanan was heavily involved. In 2003, a jury convicted both men of, among other things, racketeering, in violation of 18 U.S.C. § 1962(c) ; violent crimes in aid of racketeering ("VCAR"), including conspiracy to murder, attempted murder, and, in the case of Burden, murder, all in violation of 18 U.S.C. § 1959(a) ; and conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base and five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A).
Burden faced a mandatory minimum sentence of life imprisonment on the VCAR murder count (Count Eight) and, in light of his prior felony drug convictions, on the drug conspiracy count (Count Twelve). Accordingly, in November 2003, the district court sentenced Burden principally to life imprisonment. Buchanan did not face a statutory mandatory minimum of life imprisonment, but the then-mandatory Guidelines called for a term of life imprisonment. In April 2004, the district court sentenced Buchanan principally to life imprisonment.
About a decade later, after exhausting their direct appeals, both men brought habeas petitions to vacate their convictions on the basis of undisclosed Brady evidence—namely, contemporaneous benefits to a key cooperator—and the partial recantation of the same cooperator. The government opposed the motions. In October 2014, without conceding their positions, the defendants entered into separate resentencing stipulations with the government to resolve their pending habeas petitions.
Pursuant to Burden's stipulation, Burden agreed to amend his § 2255 petition to withdraw his request for a new trial and to replace it with a request to vacate his VCAR murder conviction on Count Eight of the operative indictment. The government, in turn, agreed that the district court should grant such relief and that the district court should vacate the judgment and conduct a full resentencing as to the remaining counts of conviction. The stipulation also provided that the government would rely on only one of Burden's prior drug offenses at resentencing, with the result that Count Twelve (the drug conspiracy) would carry a mandatory minimum sentence of 20 years rather than life.1 The parties further stipulated to a binding Guidelines range of 262–365 months' incarceration.2 The stipulation provided that, "if the Court accepts the agreement, [the Court] will be bound to impose an incarceration term within the range of 262–365 months." Burden App. 461. If, on the other hand, the district court did not accept the stipulation, the stipulation would be void and the parties would continue litigating the § 2255 petition.
Buchanan's stipulation with the government operated similarly, with the parties agreeing that Buchanan would amend his § 2255 petition to withdraw his request for a new trial in favor of a request to vacate the jury's finding as to Act of Racketeering 4 (murder) of Count One of the operative indictment. As with Burden's stipulation, Buchanan and the government stipulated that the district court, if it were to accept the stipulation, would conduct a full resentencing based on a binding Guidelines range of 262–365 months' incarceration.3
Finally, both stipulations contained identical appeal waivers:
[I]f the Court adopts this stipulation and imposes an incarceration term within the agreed-upon guideline range of 262–365 months' incarceration, the petitioner waives and gives up his right to appeal and/or collaterally attack any alleged error in connection with the resentencing itself and waives and gives up any right to raise any claim on direct appeal or collateral attack related to his remaining, underlying convictions or anything that occurred in this case prior to the re-sentencing itself....
Burden App. 459; Buchanan App. 194–95.
Neither stipulation mentioned supervised release.
On October 24, 2014, the district court presided over a joint hearing modeled on a Rule 11 plea hearing, in which it carefully canvassed the defendants to ensure that they understood the stipulations and the rights that they were waiving by entering into them. The district court did not advise the defendants that they faced terms of supervised release. Based on their counts of conviction, Burden faced a mandatory minimum term of 10 years' supervised release4 and Buchanan faced a mandatory minimum term of 5 years' supervised release. Upon completing its respective canvass of each defendant, the district court found that Burden and Buchanan had entered into their stipulations knowingly and voluntarily. It deferred decision, however, on whether it would accept the stipulations and proceed to resentence the defendants within the stipulated sentencing ranges.
On March 13, 2015, the district court held a joint proceeding to determine whether it could accept the resentencing stipulations. After hearing from the parties, the district court determined that it would enter the stipulations in both cases and granted each defendant's amended § 2255 petition. The district court then sentenced Burden to 365 months' imprisonment (the top of the stipulated Guidelines range), emphasizing the seriousness of his offense. After announcing the term of incarceration, the court imposed a life term of supervised release on Burden, which was well above the Guidelines range of 5 years' supervised release. See U.S.S.G. § 5D1.2 cmt. n.6 (2014) ( that where "the relevant statute requires a minimum term of supervised release of five years and a maximum term of life, the term of supervised release provided by the guidelines is five years").
The court then turned to resentencing Buchanan and imposed a matching sentence of 365 months'...
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