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United States v. Burford

United States District Court, D. Alaska

May 5, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
HAL FREDERICK BURFORD, Defendant.

ORDER DENYING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255

TIMOTHY M. BURGESS, District Judge.

I. INTRODUCTION

Hal Frederick Burford moves pursuant to 28 U.S.C. § 2255 to vacate his sentence and remand for resentencing, alleging that the mandatory minimum sentence imposed was based on a fact not found by the jury and that the enhancement of his sentence under 21 U.S.C. § 851 was an unconstitutional delegation of authority.[1] The government opposes the motion on the grounds that the claims are time-barred and lack merit.[2] For the reasons that follow, the Court DENIES Burford's motion at Docket 139.

II. BACKGROUND

1. Investigation, Arrest, Search, and Seizure

On November 22, 2006, members of the Drug Enforcement Agency (DEA) Alaska Interdiction group worked a FedEx sorting facility in Anchorage, Alaska to investigate the transportation of controlled substances via parcel services.[3] The group identified a package of interest addressed to "H.F. Burford" at 2051 Bofrals (Borealis) Dr., Anchorage, AK 99503.[4] Task Force Officer Matthew Heieren petitioned for and was granted a search warrant for the package.[5] Heieren discovered approximately 11 pounds of a crystalline substance in the package that field tested positive for the presence of methamphetamine.[6] Heieren petitioned for and was granted authorization from the State of Alaska to place an electronic monitoring device in the package.[7] The monitoring device was placed in the package and most of the methamphetamine was substituted with rock salt; approximately one gram of the actual methamphetamine was also placed in the package and the contents were sprayed with theft detection powder.[8]

On November 24, 2006, an agent posing as a FedEx delivery driver delivered the package to Burford at 2051 Borealis Drive.[9] Burford placed the package in his vehicle and drove to an apartment complex at 2224 D Street; he then entered an apartment with the package in his hands.[10] Shortly thereafter, the electronic monitoring device in the package alerted the agents and officers that the box had been opened.[11] Burford left the apartment without the package and agents arrested him as he approached his vehicle.[12] Agents entered the apartment and discovered the package on a couch in the living room as well as numerous rifles, two safes, and a bundle of U.S. currency in the bedroom closet.[13] Agents also discovered traces of theft detection powder on Burford's hands.[14]

2. Trial, Sentencing, and Appeals

On December 15, 2006, the government filed a four-count indictment against Burford: Count 1 charged attempted possession of methamphetamine with intent to distribute, Count 2 charged being a felon in possession of a firearm, and Counts 3 and 4 dealt with forfeiture.[15] The government later filed a notice of intent to seek enhanced statutory penalties pursuant to 21 U.S.C. § 851 based on Burford's prior felony conviction in 1986 for misconduct involving a controlled substance in the fourth degree.[16]

Counts 1 and 3 were severed for trial; Burford pleaded not guilty to Count 1, the distribution count, and was tried before a jury.[17] At trial, forensic chemist Kevin Chan testified as to the weight of the various drugs seized from the apartment and to tests that positively identified the presence of methamphetamine and other narcotics.[18] On March 30, 2007, a jury found Burford guilty of Count 1.[19] The jury was then instructed to enter a special verdict on the related forfeiture count, Count 3; it found that $144, 000 in currency seized from the apartment was subject the forfeiture.[20] After a bench trial for Counts 2 and 4, the court found Burford guilty of being a felon in possession of firearms and that the firearms were subject to forfeiture.[21] Based on an offense level of 36 and a criminal history category of II, Burford's guideline imprisonment range was 210 to 262 months.[22] On July 2, 2007, the Court imposed a sentence of 240 months for the drug charge and 120 months for the firearms count, to be served concurrently.[23]

Burford appealed and the Ninth Circuit Court of Appeals affirmed his conviction.[24] On January 16, 2009, Burford filed a petition for certiorari; the United States Supreme Court denied the petition.[25] Burford filed this § 2255 petition on June 16, 2014, claiming: (1) that the mandatory minimum sentence imposed was based on a fact not found by the jury in violation of the Supreme Court's holding in Alleyne v. United States , [26] and (2) that the enhancement of his sentence under 21 U.S.C. § 851 was an unconstitutional delegation of authority.[27]

III. DISCUSSION

The government asserts that the Court need not address the merits of Burford's claims because they are time-barred.[28] Petitions brought under § 2255 are subject to a one-year ...


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