US v. Burke (11th Cir, filed 7/19/17): Circuit split– When federal sentence is vacated, what constitutes “prior sentence”?
The Eleventh Circuit, in this opinion, notes a circuit split between the First Circuit Court of Appeals, and the Eighth and Ninth Circuits. The issue is this: What constitutes a “prior sentence” when a federal sentence is vacated, a new sentencing proceeding is ordered, and there are additional sentences that were imposed from the time of the initial sentencing and the re-sentencing?
Here is how it all played out in this case:
October 2009, Burke was indicted for being a felon in possession of a firearm. In 2010, Burke pleaded guilty. His PSR determined he was an armed career criminal based on three prior felony convictions– 1) 1999 conviction for burglary of a structure and grand theft; 2) 1999 conviction for burglary of a dwelling and theft; and 3) 1999 conviction for armed robbery. He was sentenced to 180 months.
In 2016, he moved to vacate his sentence under Johnson v. United States, 135 S. Ct. 2551 (2015) (residual clause unconstitutional) and Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson is retroactive). The district court ordered a “full resentencing.”
Not included in the previous convictions considered for assessing criminal history points, was an additional 2011 conviction for three counts of attempted armed robbery, nine counts of armed robbery with a firearm, and twelve counts of kidnapping to facilitate a felony or terrorize with a weapon. Those convictions occurred after his initial sentencing. The revised PSR recommended a term of imprisonment off 46-57 months. The district court judge sentenced Burke to 57 months to be served consecutively to his state sentence.
The Court concluded that these 2011 convictions were “prior sentences” for purposes of the Johnson resentencing. To calculate a defendant’s criminal history category, a district court must add “3 points for each prior sentence of imprisonment exceeding one year and one month.” USSG §4A1.1(a). The Guidelines define the term “prior sentence” as “any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense.” Id. §4A1.2(a)(1).
The Court notes that the First Circuit is different from the Eighth, Ninth, and Eleventh Circuits (and maybe others) in that its mandate rule limits resentencing on remand to only those portions of the sentence subject to the mandate. In other words, it does not have the broad discretion to review a remanded sentence de novo as to all parts of the sentence. Given that distinction, the Court finds that “a vacated sentence is void and resentencing occurs de novo establishes that “a prior sentence” under 4A1.1(a) is any sentence imposed before resentencing. See United States v. Martinez, 606 F.3d 1303, 1304 (11th Cir. 2010) (“[W]e have often held that a general vacatur…allows for resentencing de novo.”
All of that seems a bit unfair since it looks like defendants in the First Circuit will benefit from not having subsequent convictions considered in their re-sentencings while others, similarly situated, will have them considered. Given the age of the cases cited by the Court in this decision, this looks like an issue that has been percolating in the lower courts for some time. I wonder if, given the recency of Johnson and Welch and the necessity for new sentencing hearings throughout the country due to the finding that the residual clause is unconstitutional, if this issue will take on a sense of urgency.