United States District Court, Eastern District of Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES UNITED STATES JUDGE
This matter is pending for consideration of pro se Defendant Roy Darrell Burns's motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). [Record No. 80] The defendant seeks this reduction based upon the recently-enacted amendments to the United States Sentencing Guidelines. Having considered the defendant's motion and all relevant sentencing factors, the Court concludes that a further reduction of Defendant Burns's sentence is not warranted. As a result, his motion will be denied.
Burns is an admitted drug trafficker with an extensive criminal history. On March 17, 2008, he pleaded guilty to conspiring to possess with intent to distribute fifty grams or more of a methamphetamine mixture in violation of 21 U.S.C. §§ 841(a)(1) and 846. [Record No. 29] The accompanying Plea Agreement outlined his criminal conduct in paragraph 3. Further information is summarized in the Offense Conduct section of Burns' Presentence Investigation Report ("PSR") at paragraphs 6 through 21. [Record Nos. 30 and 63]
The sentencing hearing was held in this matter on April 15, 2009. [Record No. 57] The PSR prepared in advance of this hearing recommended a non-binding guideline range of imprisonment of 188 to 235 months, based on a Total Offense Level of 31 and Criminal History Category VI. However, based on extensive cooperation with the government, the United States moved the Court to consider a lower range pursuant to Section 5K1.1 of the United States Sentencing Guidelines. And because the defendant was subject to a statutory mandatory minimum term of imprisonment of 120 months, the United States also moved the Court to consider a sentence below that minimum term under 18 U.S.C. § 3553(e). While the Court granted the motion under the relevant section of the guidelines, the Court refused to grant the motion under § 3553(e). Burns challenged that determination on direct appeal.
Portions of the Sixth Circuit's opinion aptly put this Court's current decision to deny Burns's § 3582 motion in context.
Under the advisory U.S. Sentencing Guidelines, Burns had a total offense level of 31. Burns had twenty-four criminal history points and a criminal history category VI (which requires only 13 points). The resulting Guidelines range was 188 to 235 months, with a statutory minimum of 120 months.
After his arrest, Burns substantially cooperated with the government. He gave them information on twenty-two individuals, which generated numerous indictments and helped the Government unravel a multi-state methamphetamine syndicate. Based on this assistance, the Government filed a motion under U.S.S.G. § 5K1.1 for a departure from the Guidelines and under 18 U.S.C. § 3553(e) to depart below the statutory minimum.
After conducting a sidebar conference on the Government's motion under section 5K1.1 and § 3553(e), the district court recommended [sic] the sentencing hearing in open court by discussing the § 3553(a) factors. [footnote omitted] It noted that Burns was engaging in "drug activity" and that a number of others were involved. The court also noted "the devastating effect" of drugs like marijuana and methamphetamine on the community. The court remarked that Burns had extensive dealings with the state court system, which seemed to have little deterrent effect, also an important factor. Relatedly, the court felt a need to protect the public. Next, the court observed that while Burns had "done quite a bit to help himself, " he had not received effective drug treatment. The court said it would recommend Burns be placed in the intensive drug education and treatment program while incarcerated.
The Court stated that, if it were not for Burns's substantial assistance, the court would have imposed a sentence higher than the top of the advisory Guidelines range; that is higher than 235 months, and likely in the neighborhood of 242 to 245 months, due to Burns's lengthy criminal history and the inadequacy of criminal history category VI. See USSG § 4A1.3.
Considering the section 5K1.1 motion, the court determined that Burns was entitled to "a very significant departure: and "a substantial reduction" based on his "extensive cooperation." As a result of his cooperation, the district court granted the section 5K1.1 motion, departing downward by six offense levels to a range of 110 to 137 months, and stated that he would sentence Burns to "the upper end of the range" because of Burns's "extensive criminal history" and other sentencing factors.
The district court denied the § 3553(e) motion, however, stating as follows:
The Court does not believe it would be appropriate to grant the motion under 3553(e) for the reasons I've stated. And of course, with the range that we're talking about, it's not necessary of the Court to do that. Again, that is a substantial reduction, but it's one that the Court believes is justified. . . . [T]he Court believes under the circumstances it wouldn't be appropriate to impose more of a reduction, or even a variance, for the reasons that I have stated. . . . I do believe that the following sentence is sufficient but it's not greater that necessary to comply with the purposes of Title 18, Section 3553(a)(2).
The court then imposed a sentence of 132 months' incarceration.
[Record No. 76] The Sixth Circuit rejected Burns's arguments that the undersigned erred by not granting the government's 3553(e) motion and affirmed ...