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Sentencing and Plain Error – trial court’s erroneous reliance on conduct pre-dating entry to conspiracy calls for vacation of lengthy sentence: United States v. Burnett, _ F.3d _ (D.C. Circuit, No. 13-3075, July 8, 2016)

A unanimous panel of the D.C. Circuit (Kavanaugh, Srinivasan and Pillard, JJ), found error and vacated a 12 year and seven month sentence imposed on one of several appellants who were found guilty of a 21 U.S.C. § 846 heroin trafficking offense. After rejecting several merits-based arguments, including a thorough discussion of Rule 404b), F. R. EVID., standards, the Court of Appeals examined the three appellants’ sentencing claims. One of those issues struck home: the contention raised by Appellant Burnett that the Trial Judge had mistakenly based the sentence in part on drug distributions that occurred before Burnett joined the conspiracy.

Writing for the panel, Circuit Judge Kavanaugh explained that “[t]he Sentencing Guidelines limit the relevant conduct that may be attributable to a co-conspirator: (1) The acts must be in furtherance of the conspiracy to which the defendant agreed; and (2) the acts must be reasonably foreseeable to the defendant.” (Slip Op. at 18) (citing United States v. Childress, 58 F.3d 693, 722 (D.C. Cir. 1995)). Further, Judge Kavanaugh pointed out that “when calculating a sentence, a district court may not attribute to a defendant conduct that occurred before he joined the conspiracy.) (Slip Op. at 21) (emphasis original) (citing U.S.S.G. § 1B1.3, Application Note 3).

Burnett conceded that his counsel below had failed to raise that claim. As a result, the issue was governed by a plain error standard: “The Supreme Court recently explained that plain error in the Guidelines calculation context means this: A defendant must demonstrate ‘a reasonable probability that, but for the error, the outcome of the proceeding would have been different.’” (Slip Op. at 21) (quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal quotation marks omitted)). Moreover, “[i]n the sentencing context, a defendant who demonstrates that he was sentenced under an incorrect Guidelines range will typically have demonstrated a reasonable probability that the outcome of the proceeding would have been different but for the error.” (Slip Op. at 21) (citing Molina, 136 S. Ct. at 1345).

Applying that demanding standard, the panel found plain error. Almost a third of the drug quantity found by the Trial Judge rested on heroin transactions that clearly predated Burnett’s joining the conspiracy, which the Government did not dispute on appeal. That amount, the appellate panel noted, corresponded to a lower base offense level under the Sentencing Guidelines. “And that lower base offense level, in turn, corresponds to a different, lower sentencing range.” (Slip Op. at 21-22). Burnett, thus, showed plain error entitling him to a resentencing.

Congratulations are in order to the Davis & Davis (Mary and Chris) “tag team” for saving their client from an unduly lengthy term of incarceration.

–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit. (Disclosure: I represented an appellant in the Childress appeal.)