United States v. Burnette

• Decision Date: 11 March 2008
• Docket Number: No. 07-1476.,07-1476.
• Citation: 518 F.3d 942
• Parties: UNITED STATES of America, Appellee, v. Shawn BURNETTE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

518 F.3d 942

UNITED STATES of America, Appellee, v. Shawn BURNETTE, Appellant.

No. 07-1476.

United States Court of Appeals, Eighth Circuit.

Submitted: December 11, 2007.

Filed: March 11, 2008.

Appeal from the United States District Court for the District of South Dakota.

Terry L. Pechota, argued, Rapid City, SD, for Appellant.

Mara K. Kohn, Assistant U.S. Attorney, argued, Rapid City, SD, Jay Miller, Assistant U.S. Attorney, (on the brief), Pierre, SD, for Appellee.

Before COLLOTON, BEAM, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Shawn Lee Burnette pled guilty to one count of conspiracy to distribute, or possess with intent to distribute, methamphetamine. The district court¹ sentenced him to 188 months in prison. Burnette appeals contending that the district judge should have recused, the determination of drug quantity was in error, two levels for acceptance of responsibility should have been awarded, the district court misapprehended its discretion to sentence under 18 U.S.C. § 3553(a), and the sentence was unreasonable. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms.

II.

Shawn Burnette was indicted on one count of conspiracy to distribute, or possess with intent to distribute, methamphetamine and one count of conspiracy to manufacture meth, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Burnette pled guilty to the distribution count without a plea agreement.

After plea, but before sentencing, Burnette was called by the defense to testify at the sentencing of Rudy Garcia, a co-conspirator. At Garcia's sentencing, Burnette testified that Garcia had not sold illegal drugs, there were not many drug dealers on the Rosebud Reservation, and an FBI agent lied about Burnette's earlier statements. The judge did not believe Burnette, finding he "was lying." After the hearing, the government advised Burnette's counsel that he had testified and was found not credible. Burnette was sentenced by the same judge who sentenced Garcia. At the beginning of the hearing, the judge asked Burnette's counsel whether he was aware of the adverse findings made at the Garcia sentencing. Counsel responded that he was aware.

The PSR attributed 3,647.47 grams of meth to Burnette, for a base offense level 34. The PSR also recommended a two-level enhancement for possession of a gun, and disallowance of a two-level reduction for acceptance of responsibility because Burnette admitted to only eight percent of the drug amount attributed to him. With no criminal history, Burnette's recommended guideline range was 188 to 235 months. Burnette objected to the drug quantity, the firearm enhancement, and the denial of acceptance-of-responsibility credit.

Because Burnette objected to the PSR, the government began calling witnesses. One witness testified that he told law enforcement he purchased meth from Burnette 300 to 400 times, but later changed his statement to 20 times. Asked to explain the change, the witness testified that Burnette "threatened my family and me." The court told Burnette that the witness's testimony could result in a serious charge against him, and recessed the hearing to allow Burnette to consult with counsel. After the recess, Burnette's counsel stated that they were going to "withdraw our objections to the presentence report and let it stand as it was originally issued by the probation officer." The government agreed not to seek additional charges against Burnette, or an obstruction-of-justice enhancement. The court asked Burnette if that was what he wanted to do, and he replied "Yes, sir." The court then denied all objections to the PSR as moot, and accepted the PSR guidelines range of 188 to 235 months. Recognizing that it "is required to consider not only the Federal Sentencing Guidelines but the statutory factors set forth in 18 United States Code, Section 3553," the court sentenced Burnette to 188 months because it did "not believe this is an appropriate case for a variance."

II.

A.

Burnette argues that the district judge should have recused due to bias from his testimony at Garcia's sentencing. Burnette did not object, or move for recusal. Therefore, this court may review only for plain error. See Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir.2003).

A judge must recuse if "his impartiality might reasonably be questioned" because of bias or prejudice. 28 U.S.C. § 455. Bias and prejudice can result from knowledge that the judge should not possess. Liteky v. United States, 510 U.S. 540, 550, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), "[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. at 555, 114 S.Ct. 1147. "Rules against `bias' and `partiality' can never mean to require the total absence of preconception, predispositions and other mental habits." See United States v. Bernstein, 533 F.2d 775, 785 (2nd Cir.1976), cited with approval in, United States v. Thirion, 813 F.2d 146, 155 (8th Cir.1987).

The district judge here did not plainly error by not recusing sua sponte. It was proper for the judge to note that he had found Burnette not credible at Garcia's sentencing. See Thirion, 813 F.2d at 155 (recusal not required from Thirion's trial where judge previously stated at co-defendant's sentencing that Thirion's criminal conduct was greater than the co-defendant's).

Burnette argues that the sentence of 188 months demonstrates the judge's antagonism. After noting he found Burnette lied at Garcia's sentencing, the judge stated: "I firmly believe that this defendant is one of the — or was one of the big time drug dealers on Rosebud." District courts must make these types of credibility determinations and findings of fact in order to sentence defendants individually. See 18 U.S.C. § 3553(a) (listing the sentencing factors the district court must consider for each defendant). A sentence at the low end of the advisory guideline range, for a defendant found to be a "big time drug dealer," does not demonstrate deep-seated antagonism that would make fair judgment impossible.

B.

Burnette asserts several sentencing errors. This court reviews the district court's interpretation and application of the guidelines de novo, and its factual findings for clear error. See United States v. Peterson, 455 F.3d 834, 837 (8th Cir.2006).

Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard. It must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Assuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.

Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Procedural sentencing errors are forfeited, and therefore may be reviewed only for plain error, if the defendant fails to object in the district court. See United States v. Pirani, 406 F.3d 543, 550 (8th Cir.2005) (en banc). A defendant need not object to preserve an attack on the substantive reasonableness of a sentence, however. See United States v. Wiley, 509 F.3d 474, 476-77 (8th Cir.2007) (no objection required to preserve error where a defendant asserts only that the length of the sentence is unreasonable), citing United States v. Torres-Duenas, 461 F.3d 1178, 1182-83 (10th Cir.2006) ("We have held that when the defendant fails to object to the method by which the sentence was determined, ... we review only for plain error. But when the claim is merely that the sentence is unreasonably long, we do not require the defendant to object in order to preserve the issue.") (citation omitted).

Burnette claims that the district court erred in determining the drug quantity attributed to him. A drug quantity is a finding of fact reviewed for clear error when objected to at sentencing, or plain error if the defendant does not object. See United States v. Mickelson, 378 F.3d 810, 821 (8th Cir.2004). A defendant who withdraws all objections to the PSR, however, waives all arguments regarding those facts on appeal. See United States v. White, 447 F.3d 1029, 1032 (8th Cir.2006).

Burnette admits withdrawing his objections to the PSR, but contends that because he withdrew them after four witnesses testified, objections as to those witnesses were not withdrawn. The record indicates otherwise. Burnette's counsel stated, and Burnette agreed, that "we are going to, at this time, Your Honor, withdraw our objections to the presentence report and let it stand as it was originally issued by the probation office." This court need not address Burnette's arguments regarding drug quantity because he waived this argument. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (explaining the difference between forfeiture which may receive plain error review, and waiver, which receives no review).

Burnette contends he should have received a reduction of at least two offense levels for acceptance of responsibility because he pled guilty. See U.S.S.G. § 3E1.1. Because Burnette withdrew all objections to the PSR, which denied credit for acceptance of responsibility, he also waived this argument on appeal. See United States v. Thompson, 289 F.3d 524, 526-27 (8th Cir.2002).

Burnette argues that the...