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United States v. Birnie

United States District Court, E.D. Pennsylvania

June 16, 2015

UNITED STATES OF AMERICA
v.
GERALD BIRNIE

MEMORANDUM

NORMA L. SHAPIRO, J.

Before the court are defendant’s pro se Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 and plaintiff’s Memorandum in Opposition. Because the August 25, 2014, custodial sentence was the statutory maximum and defendant was not prejudiced by counsel’s failure to challenge its legality, defendant’s motion will be denied.

I. BACKGROUND

On the morning of March 9, 2007, defendant attempted to break into the automated teller machine near the back of the Wachovia Bank at 6400 Frankford Avenue in Philadelphia. After receiving radio notification of a burglary in progress, police officers found and arrested defendant at the scene.

On November 27, 2007, a jury convicted defendant of attempted bank larceny, a Class C felony. Defendant was sentenced to twenty-one months in custody followed by a three-year term of supervised, conditional release, and restitution of $3, 897.70 and a special assessment of $100 were ordered. The judgment was affirmed on appeal. U.S. v. Birnie, No. 08-1944 (3d. Cir. May 14, 2009).

Defendant violated his supervised release by taking a controlled substance without a prescription, taking an illegal drug, and attempting to circumvent a drug test. On April 12, 2013, the court revoked defendant's supervision and sentenced defendant to eight months in custody followed by twenty-eight months of supervised, conditional release.

The court granted defendant’s motion to vacate, set aside, or correct the April 12, 2013, sentence under 28 U.S.C. § 2255; the court had intended the sentence to be retroactive to February 28, 2013, but a sentence cannot begin before it is imposed. Howard v. Longley, No. 13-2304, 2013 WL 4517257, at *2 (3d Cir. Aug. 27, 2013). Defendant was re-sentenced to time served and twenty-eight months of supervised, conditional release.

On August 25, 2014, the court again found defendant violated the terms of his supervised release and sentenced him to twenty-four months in custody with credit for time served and no sentence of supervised release to follow. The court ordered defendant to make payments toward his outstanding restitution balance of $3, 847.70.

Defendant admitting to violating the conditions of his supervised release by:

1. leaving this district without permission of the court or his probation officer;
2. using controlled substances not prescribed by a physician;
3. failing to maintain gainful employment;
4. violating state law by attempting to sabotage a drug test;
5. absconding from supervision following his failed attempt to ...

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