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United States v. Burke

United States Court of Appeals, Eleventh Circuit

July 19, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
WILLIE J. BURKE, JR., Defendant-Appellant.

         Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 4:09-cr-00063-RH-CAS-1

          Before ED CARNES, Chief Judge, WILLIAM PRYOR and DUBINA, Circuit Judges.

          WILLIAM PRYOR, CIRCUIT JUDGE:

         We must decide whether the term "prior sentence, " United States Sentencing Guidelines Manual § 4A1.1(a) (Nov. 2015), includes a state sentence imposed after a defendant's initial federal sentence but before the district court vacated that sentence and resentenced him. Willie Burke Jr. pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g), and an armed career criminal, id. § 924(e), and was sentenced in 2010. In 2011, a Florida court sentenced him for attempted armed robbery, armed robbery, and kidnapping to facilitate a felony or terrorize with a firearm. In 2016, the district court vacated Burke's federal sentence, 28 U.S.C. § 2255, and conducted a full resentencing. The district court added three criminal history points for Burke's 2011 Florida sentence because it was a "prior sentence" when the district court resentenced him, U.S.S.G. § 4A1.1(a). Burke now challenges that calculation. But we agree with the district court that, when a court vacates a sentence, that sentence "becomes void in its entirety, " United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996), so the term "prior sentence" includes a state sentence imposed before resentencing. Burke also asks us to vacate his sentence on the ground that another of his prior convictions, for Florida armed robbery in 1999, is not a "crime of violence, " U.S.S.G. § 2K2.1(a)(4)(A), but our precedent forecloses this argument. We affirm.

         I. BACKGROUND

         In October 2009, a federal grand jury indicted Willie Burke for being a felon in possession of a firearm and an armed career criminal, 18 U.S.C. §§ 922(g), 924(e). Burke pleaded guilty in 2010. The presentence investigation report determined that Burke was an armed career criminal based on three prior felony convictions: (1) a 1999 Florida conviction for burglary of a structure and grand theft from a retail merchant; (2) a 1999 Florida conviction for burglary of a dwelling and grand theft; and (3) a 1999 Florida conviction for armed robbery. The district court imposed the statutory minimum sentence of 180 months imprisonment followed by three years of supervised release.

         In 2016, Burke moved to vacate his sentence, 28 U.S.C. § 2255. He argued that the decision in Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), later made retroactive in Welch v. United States, 136 S.Ct. 1257, 1268 (2016), required vacatur of his sentence and resentencing. The government agreed, and the district court ordered a "full resentencing."

         The probation office prepared a revised presentence investigation report. The report calculated a base offense level of 20 because Burke had previously been convicted of one "crime of violence, " Florida armed robbery in 1999, U.S.S.G. § 2K2.1(a)(4)(A). The report then applied a three-level reduction for acceptance of responsibility, id. § 3E1.1(a), to arrive at a total offense level of 17. The report also gave Burke ten criminal history points to arrive at a criminal history category of V. Three of those criminal history points pertained to Burke's 2011 Florida convictions 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 firearm. These convictions occurred after his initial sentencing. The revised report recommended a term of imprisonment of 46 to 57 months.

         Burke objected to the report on two grounds. First, Burke argued that the report impermissibly added three criminal history points for his 2011 Florida conviction. He explained that, because "judgment and sentence" for the 2011 conviction was imposed "a year after the initial sentencing in this case, " the 2011 conviction "cannot be considered a 'prior sentence' as th[at] term is defined in" section 4A1.2(a) of the Guidelines. Second, he argued that his 1999 conviction for Florida armed robbery is not a "crime of violence" for purposes of section 2K2.1(a)(4), although he acknowledged binding precedent to the contrary, United States v. Lockley, 632 F.3d 1238, 1245-46 (11th Cir. 2011).

         The district court overruled both objections at Burke's sentencing hearing. The district court ruled that a prior sentence includes any unrelated sentence imposed before resentencing because "[t]he point of the criminal history calculation is to figure out what kind of criminal record the defendant has. . . . And so you take into account convictions prior to the time of sentencing." The district court also ruled that Florida armed robbery is a crime of violence. The district court sentenced Burke to 57 months imprisonment to be served consecutively to his state sentences.

         II. STANDARD OF REVIEW

         We review de novo "a district court's interpretation of the Sentencing Guidelines." United States v. Coast, 602 F.3d 1222, 1223 n.1 (11th Cir. 2010). We also "review de novo whether a prior conviction qualifies as a 'crime of violence' under the Sentencing Guidelines." Lockley, 632 F.3d at 1240.

         III. DISCUSSION

         Burke argues that the district court erred when it added three points to his criminal history category for his 2011 sentence entered by the Florida court because that state sentence was imposed after his initial federal sentencing and, as a result, is not a "prior sentence" under the Sentencing Guidelines, U.S.S.G. § 4A1.1(a). We disagree. Because Burke moved to vacate his ...


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