United States District Court, D. Alaska
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 ...