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United States v. Burts

United States District Court, S.D. Mississippi, Southern Division

June 19, 2017

UNITED STATES OF AMERICA
v.
NIKIA DANYELLA BURTS Civil No. 1:17cv79-HSO

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION [94] TO VACATE, SET ASIDE, OR CORRECT SENTENCE FILED PURSUANT TO 28 U.S.C. § 2255 AND DENYING DEFENDANT'S MOTION [95] FOR RELIEF UNDER THE INTERESTS OF JUSTICE

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT are the Motion [94] to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and the Motion [95] for Relief under the Interests of Justice, filed pursuant to 28 U.S.C. § 2255 by Defendant Nikia Danyella Burts (“Burts” or “Defendant”). Defendant seeks to set aside his June 5, 2013, Judgment of Conviction [81] for conspiracy to possess with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. § 846 on grounds that his sentencing enhancement as a career offender was improper. Having considered the issues presented, the record, and relevant legal authority, the Court is of the opinion that Burts is not entitled to relief and that the Motions [94], [95] should be denied without an evidentiary hearing.

         I. BACKGROUND

         A. Factual Background

         The United States of America (“the Government”) filed a Criminal Complaint [1] on November 29, 2012, alleging that Defendant and two co-defendants violated 21 U.S.C. § 846 by conspiring to possess with intent to distribute a controlled substance, specifically more than 500 grams but less than 5 kilograms of cocaine hydrochloride. Compl. [1] at 1. On December 12, 2012, a Grand Jury returned an Indictment [26] charging Defendant with two criminal counts: (1) conspiracy to possess with intent to distribute more than 500 grams of cocaine hydrochloride, as prohibited by 21 U.S.C. § 846; and (2) attempt to possess with intent to distribute more than 500 grams of cocaine hydrochloride, as prohibited by 21 U.S.C. § 846. Indictment [26] at 1.

         Defendant ultimately entered into a written Plea Agreement [65] with the Government and pleaded guilty to Count One of the Indictment [26] on February 20, 2013. Minute Entry Feb. 20, 2013. Pursuant to the Plea Agreement [65], Defendant expressly waived “the right to contest the conviction and sentence or the manner in which the sentence was imposed in any post-conviction proceeding, including but not limited to a motion brought under Title 28, United States Code, section 2255.” Plea Agreement [65] at 4-5.

         Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report (“PSR”) as to Burts. Applying the United States Sentencing Commission 2012 Guidelines Manual (“Guidelines”) § 2D1.1(c)(4), the PSR calculated Burts' base offense level as 32. PSR [79] at 11. The PSR recommended that Burts' sentence was subject to enhancement as a career offender pursuant to § 4B1.1, which provides that

[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). § 4B1.2 defines “controlled substance offense” as

an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 4B1.2.

         The PSR concluded that Burts met the criteria to be classified as a career offender under § 4B1.1(a) of the Guidelines. PSR [79] at 10. § 4B1.1(a)(1) and (2) were satisfied because Burts was over 18 years old at the time he committed the instant offense of conviction, which was a felony that qualified as a controlled substance offense. Id.

         The PSR determined that § 4B1.1(a)(3) was also satisfied because Burts had two prior felony convictions that qualified as controlled substance offenses. Id. Burts previously pleaded guilty in this Court and was sentenced on June 14, 2004, for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846.[1] See Criminal No. 1:03cr93-WJG-4. Burts was also convicted in 1999 of possession with intent to deliver between 4 and 200 grams of cocaine, a felony of the first degree, in Harris County, Texas.[2] See Harris Cty., Tex., Cause # 817, 611; Tex. Health & Safety Code Ann. § 481.112 (hereafter referred to as “§ 481.112”).

         The Guidelines instruct that the base offense level for a career offender, as set forth in a table in subsection § 4B1.1(b), shall apply instead if that offense level is greater than the otherwise applicable base offense level. U.S.S.G. §4B1.1(b). The base offense level for a career offender pursuant to § 4B1.1(b) was 34 and was applied to Burts because it was greater than the otherwise applicable offense level of 32. PSR [79] at 9-10. After a three-level adjustment for acceptance of responsibility, Burts' total offense level was 31. Id. at 11.

         Burts' criminal convictions resulted in a criminal history score of 12, which placed him in a criminal history category of V. Id. at 14. However, because Burts qualified for career offender status, his criminal history category was automatically elevated to VI, as mandated by §4B1.1(b). Id. The PSR thus recommended an imprisonment range under the Guidelines between 188 months and 235 months based upon an offense level of 31 and a criminal history category of VI. Id. at 18. Burts submitted no objections to the PSR.

         On June 5, 2013, the Court sentenced Burts to 170 months imprisonment as to Count One and dismissed Count Two of the Indictment [26] on the Government's Motion. Minute Entry June 5, 2013. The Court also sentenced Burts to four years of supervised release, a $5, 000.00 fine, and a $100.00 special assessment. J. [81] at 3, 5. Neither Defendant nor his counsel filed an appeal of the Judgment of Conviction [81] within the time afforded by the Federal Rules of Appellate Procedure. See Mot. [94] at 2.

         B. Procedural History

         A. Motions [94], [95] in Criminal No. 1:12cr108-HSO-JMR-2

         Proceeding pro se, Defendant filed the instant Motion [94] to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 on March 16, 2017. On the same day, Burts also filed a separate Motion [95] to “be construed as the motion for relief under the interests of justice.” Mot. [95] at 1. Although the Motion [95] appears to be titled “Motion to construe petition as 2255 (f) (4) or Under the All writs act or Motion pursuant to 28 USC 2255 (f) (3), ” it is not in the standard form required by Rule 2 of the Rules Governing Section 2255 Proceedings for the United States District Courts (“Section 2255 Rules”).

         Burts asserts that he is bringing both Motions [94], [95] pursuant to § 2255(f)(3) or, in the alternative, § 2255(f)(4), and both petitions set forth the same grounds for relief. See Mot. [94] at 1; Mot. [95] at 1. Furthermore, Burts' § 2255 Motion [94] instructs the Court to “see memorandum of law, ” although no separate memorandum was filed. Mot. [94] at 4, 5. The Court construes the Motion ...


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