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Burton v. United States

United States District Court, M.D. Pennsylvania

December 18, 2019

DOMINICK BURTON, Petitioner
v.
UNITED STATES OF AMERICA, Respondent

          MEMORANDUM

          Kane Judge.

         Before the Court is pro se Petitioner Dominick Burton (“Petitioner”)'s motion to vacate, set aside, or correct his sentenced pursuant to 28 U.S.C. § 2255. (Doc. No. 253.) For the reasons that follow, the Court will dismiss Petitioner's motion as moot.

         I. BACKGROUND

         On August 26, 2015, a grand jury returned an indictment charging Petitioner with conspiracy to manufacture, distribute, and possess with the intent to distribute at least 100 grams of heroin, cocaine hydrochloride, and marijuana; and possession with the intent to distribute at least 100 grams of heroin, cocaine hydrochloride, and marijuana. (Doc. No. 1.) Alan M. Ross (“Attorney Ross”) represented Petitioner, who entered into plea negotiations with the Government, resulting in a plea agreement. (Doc. No. 144.) The plea agreement called for Petitioner to plead guilty to Count Four of the indictment, charging him with possession with intent to distribute at least 100 grams of heroin, cocaine hydrochloride, and marijuana. (Id. ¶ 1.) The plea agreement indicated that the indictment would “be amended at the time of the guilty plea to remove the reference to any particular amount of heroin.” (Id.) In the plea agreement, Petitioner and the Government stipulated that “the amount of heroin for guideline purposes is at least 20 but no more than 40 grams.” (Id. ¶ 11.) The parties further stipulated that if Petitioner was “a category I offender, the [guidelines] range before acceptance of responsibility is 21-27 months. With 3 levels off for acceptance of responsibility the advisory imprisonment range is 12-18 months. If he is a category II offender the corresponding ranges from those offense levels would apply.” (Id.)

         On September 15, 2016, Petitioner appeared before Magistrate Judge Martin C. Carlson for a change of plea hearing. (Doc. No. 157.) Magistrate Judge Carlson concluded that Petitioner was fully competent to enter an informed plea and understood the consequences of his plea, that he was pleading guilty knowingly and voluntarily, and that the plea was supported by an independent basis in fact. (Id.) On that date, Magistrate Judge Carlson recommended that this Court accept Petitioner's guilty plea. (Id.) On October 4, 2016, the Court adopted Magistrate Judge Carlson's Report and Recommendation and accepted Petitioner's guilty plea. (Doc. No. 167.)

         The United States Probation Office subsequently prepared a Presentence Report (“PSR”), concluding that Petitioner's base offense level was 30 because Petitioner was responsible for twenty (20) grams of heroin, 10.9 kilograms of marijuana, 360 grams of crack cocaine, and .16 grams of cocaine hydrochloride. (Doc. No. 199 ¶ 19.) The Probation Office added two (2) levels pursuant to United States Sentencing Guidelines (“USSG”) § 2D1.1(b)(1), stating “[a]lthough the Government advised that there is no evidence to connect the gun found in the defendant's vehicle to drug distribution, surveillance operations of Mr. Burton's vehicle observed him meeting with individuals in parking lots for short periods of time, which is consistent with drug trafficking.” (Id. ¶ 20.) With a three (3)-level reduction for acceptance of responsibility, Petitioner's total offense level was 29. (Id. ¶¶ 26-28.) Petitioner's criminal history placed him within category II. (Id. ¶ 37.) The Probation Office determined that with a total offense level of 29 and a criminal history category of II, the Sentencing Guidelines called for 97 to 121 months of incarceration. (Id. ¶ 56.)

         Attorney Ross filed two (2) objections to the PSR. (Doc. No. 200.) First, he asserted that the total offense level should be 13 because Petitioner's co-defendant “did not supply him with one pound of marijuana and 15 grams of crack cocaine weekly for a period of six months.” (Id. at 1.) The Probation Office stood by the PSR, but did recognize that the plea agreement contained the parties' stipulation that the amount of heroin attributable to Petitioner was at least twenty (20) grams, but no more than forty (40) grams. (Id.) The Probation Office further noted that the Government could not argue against the stipulation without being in violation of the plea agreement. (Id.) The Probation Office noted that if the Court sustained Petitioner's objection, “the advisory guidelines custody range would be 21 to 27 months based on a total offense level of 15 and a criminal history category of II.” (Id. at 2.) Attorney Ross also objected to the two (2)-level enhancement under § 2D1.1(b)(1) for possession of a firearm in connection with drug trafficking. (Id.) The Probation Office stood by the PSR, noting that it was not “clearly improbable” that the firearm was connected to the offense. (Id.) The Probation Office noted that if the Court sustained Petitioner's objection, “the advisory guideline custody range would be 78 to 97 months based on a total offense level of 27 and a criminal history category of II.” (Id.) If the Court sustained both objections, “the advisory guideline custody range would be 15 to 21 months based on a total offense level of 13 and a criminal history category of II.” (Id.)

         The parties appeared before the Court for Petitioner's sentencing on January 18, 2017. (Doc. No. 214.) The Court sentenced Petitioner to twenty-seven (27) months' incarceration, to be followed by three (3) years of supervised release. (Id. at 2-3.) On January 27, 2017, the Court entered an amended judgment to correct a clerical error regarding Petitioner's assigned United States Marshal number. (Doc. No. 216.) Petitioner did not appeal to the United States Court of Appeals for the Third Circuit.

         On February 9, 2018, Petitioner, proceeding pro se, filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, requesting that his sentence be vacated and corrected based upon the Supreme Court's decision in Nelson v. Colorado, 137 S.Ct. 1249 (2017), alleging that the two (2)-point enhancement for possession of a firearm during drug trafficking was a violation of his due process rights and referencing a “presumption of [innocence].” (Doc. No. 253 at 1.) Petitioner was released from incarceration on January 31, 2019 and is currently serving his three (3)-year term of supervised release. (Doc. No. 256.) In an Order dated November 8, 2019, the Court directed the Government to respond to Petitioner's motion. (Doc. No. 260.) On November 26, 2019, the Government filed its brief in opposition, alleging that Petitioner's § 2255 motion is time-barred and that his claim lacks merit. (Doc. No. 262.) To date, Petitioner has filed neither a reply brief nor an extension of time to do so. Accordingly, because the time period for filing a reply brief has expired, Petitioner's § 2255 motion is ripe for resolution.

         II. LEGAL STANDARD

         Under 28 U.S.C. § 2255(a), a federal prisoner may file a motion requesting that the sentencing court vacate, set aside, or correct his sentence on the basis “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the [C]ourt was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” See 28 U.S.C. § 2255(a). However, Section 2255 does not afford a remedy for all errors that may have been made at trial or during sentencing. See United States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993) (citing United States v. Addonizio, 442 U.S. 178, 185 (1979)). Rather, Section 2255 is implicated only when the alleged error raises “a fundamental defect which inherently results in a complete miscarriage of justice.” See Addonizio, 442 U.S. at 185.

         III. DISCUSSION

         A. Timeliness of Petitioner's § 2255 Motion

         The Government first asserts that Petitioner's § 2255 motion is untimely. (Doc. No. 262-at 2.) The Court, however, does not agree with the Government's argument. Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner has one year from the time her conviction becomes final to file a Section 2255 motion. See 28 U.S.C. ยง ...


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