United States v. Burk

          ORDER RE SECTION 2255 PETITION

          SHARON L. GLEASON, UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant Johnnylee Burk's Motion to Vacate, Set Aside or Correct Convictions and Sentence Pursuant to 28 U.S.C. § 2255 at Docket 216; Amended Motion to Vacate, Set Aside or Correct Convictions and Sentence Pursuant to 28 U.S.C. § 2255 at Docket 235; and Motion to Take Notice of Filed Motions at Docket 240. The Government responded to Mr. Burk's Amended Motion to Vacate at Docket 239.

         BACKGROUND

         On October 21, 2015, Mr. Burk was indicted for Count 1, Drug Conspiracy in violation of 21 U.S.C. §§ 846 and 841(a)(1); Count 2, Possession of a Controlled Substance with Intent to Distribute in violation of 21 U.S.C. § 841(a)(1); Count 3, Possession of Firearms in Furtherance of Drug Trafficking Crimes in violation of 18 U.S.C. § 924(c)(1)(A); and Count 4, Felon in Possession of a Firearm and Ammunition in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2).^[1]

         The parties entered into a Plea Agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A) and (B), in which Mr. Burk pled guilty to Count 1, Drug Conspiracy.^[2]The Government agreed not to prosecute Mr. Burk for any other offense.^[3] Mr. Burk waived his right to appeal the conviction and all rights to collaterally attack the sentence, terms of probation, or supervised release except for alleging ineffective assistance of counsel or the voluntariness of his plea.^[4] In the Plea Agreement, the parties agreed to recommend a sentence of 60 months' imprisonment and a term of supervised release of two years.^[5]

         At the change of plea hearing, the parties acknowledged an error in the Plea Agreement regarding the statutory term of supervised release for the drug conspiracy charge.^[6] The Plea Agreement stated the statutory term was a mandatory minimum of two years and a maximum of life.^[7] Counsel for Mr. Burk initially stated that he believed that two years was the maximum term allowable for supervised release.^[8] The Government attorney was uncertain as to the permissible statutory range.^[9] The Court then took a recess so that the lawyers could research the issue. Thereafter, both lawyers agreed that correct statutory term of supervised release was a mandatory minimum of two years up to a maximum of three years.^[10]

         DISCUSSION

         Mr. Burk is self-represented in his motions. His only argument in his Amended Motion to Vacate asserts that his guilty plea was involuntary because the Government agreed to allow him to plead to an “E” felony but the Plea Agreement that Mr. Burk signed provided he was pleading guilty to a “D” felony.^[11] Mr. Burk's argument relates to the term of supervised release. He argues that when he agreed to plead guilty, he believes he could receive no more than two years of supervised release.^[12]

         At the change of plea hearing, the parties discussed the term of supervised release. The initial discussion on this topic was as follows:

The Court: All right. So there is an agreement of a two-year supervised release and there's-is the Government's position, that that's the mandatory minimum under the statute, or up to life, or-Mr. Walker, what's your position on that?

Mr. Walker: Your Honor, without researching it further, I wouldn't want to go beyond the terms of the agreement. Looks like when we drafted the Rule 11 agreement, our position was it was a mandatory minimum. Before committing to being absolutely sure, I would want to take another look at the statute, which I can do.

The Court: I do think it's relevant because it's a recommendation from the parties, and it's necessary for Mr. Burk to understand. And I'm going to go over this with you in a bit here, sir, but the fact that the parties make a recommendation does not bind the Court. What does bind the Court is the statute, and that's why I'm asking the lawyers what the statute provides.

         At this point in the hearing, the Court took a recess so as to accord to the lawyers an opportunity to research the statute. Following that break, the discussion continued as follows:

Mr. Walker: Your Honor, the short answer is Rule 11 agreement remains correct. I can explain a little bit why. In speaking with counsel and looking at 18 U.S.C. 3583, the general rule is that a Class D felony, which would include this offense, has a maximum supervised release period of three years. However, 21 U.S.C. 841(b)(1)(D), bravo and delta, has an exclusion from the general provision and reads that notwithstanding 18 U.S.C. 3583, any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such prior conviction, meaning a prior drug conviction, impose a term of supervised release of at least two years-so that does correspond to the plea agreement-in addition to such term of imprisonment. And if there were an 853 prior conviction, then at least four years. So 21 U.S.C. 841 excepts convictions under that section from the general limitation. So two years is the mandatory minimum required under 21 U.S.C. 841 and it is also the parties' agreement.

The Court: How do you get to the life that's in the plea agreement? Did I miss that? I'm looking at Page 6, Part 3, mandatory minimum of two years to life.

Mr. Walker: Then that is certainly an error on Page 6. So with counsel's nonobjection, the Court's permission, I'd move the Court strike the words “to life of supervised release” on Page 6.

The Court: So mandatory minimum of two years up to-was it four years?

Mr. Dieni: Three. I think three was without the 851, and they're not filing that. So yeah.

The Court: So would you agree, Mr. Walker, it's a mandatory minimum of two years, up to three years of supervised ...