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United States v. Burden

On June 19, 2017, the Second Circuit (Katzmann, Kearse, Livingston) issued a per curiam decision in United States v. Burden, et al., vacating the term of supervised release imposed on the defendants and remanding the case for resentencing as to supervised release.  Judge Kearse concurred in a separate opinion.

The appeal involved two defendants, Kelvin Burden and Jermaine Buchanan, who were convicted of a number of offenses relating to drug dealing and crimes of violence after a jury trial in 2003.  Both men were sentenced to life imprisonment.  Several years later, both defendants brought petitions pursuant to Section 2255 alleging violations of Brady.  The government opposed the petitions, but then entered into stipulations with the defendants in which the defendants agreed to withdraw their petitions in exchange for being resentenced to a term of years.  Both men were sentenced to 365 months’ imprisonment and to life terms of supervised release.  The prospect of supervised release was not mentioned in the stipulations and was not part of a stipulation-related allocution conducted by the district court prior to sentencing.

The defendants appealed their sentences and also argued that the absence of any allocution by the district court relating to their terms of supervised release rendered their agreement to the stipulation unknowing.  Therefore, the defendants argued that they should be permitted to withdraw from their sentencing stipulations and proceed with their 2255 petitions.  The defendants further argued that an appeal waiver contained in each of their stipulations did not apply because it did not cover a challenge to a term of supervised release but only waived an appeal of a term of incarceration.[1] 

The Court first ruled that the appeal waiver was enforceable, notwithstanding the district court’s omission of the fact that the defendants faced a possible term of supervised release.  The Court held that the defendants could not prove that they would not have entered into the stipulations had they known of the possible imposition of supervised release.  However, the Court also held that the appeal waiver did not bar a challenge to the length of the term of supervised release.  Although the appellate waiver was broadly written to bar the appeal of “any alleged error in connection with the resentencing” if the defendants were sentenced to a prison term within a stipulated Guidelines range, it did not specifically waive the right to challenge a term of supervised release.  The Circuit cited its own prior decisional law in support of this ruling, which made clear that an appeal waiver covers only those aspects of the sentence specifically mentioned in the waiver—here, the term of imprisonment, but not the term of supervised release.  On this point, Judge Kearse concurred separately to say that she believed that the language of the appeal waiver here appeared sufficiently broad to apply to a challenge to supervised release, but she recognized that in the past the Court has declined to extend similar waivers to bar appeals from non-incarceratory aspects of the sentence where those aspects were not specifically identified in the stipulation.

On the merits, the Court found that the imposition of a life term of supervised release was procedurally unreasonable.  Although the district court explained its rationale for imposing a sentence of 365 months’ imprisonment, that rationale focused particularly on the seriousness of the offense and the need for retribution.  Retributive considerations are not relevant to the calculation of supervised release, an aspect of sentencing that Congress intended to assist individuals in their transition to community life.  “[W]hen a supervised release term is inflected with retributive interests—as appears may have been the case here—the district court commits procedural error and the supervised release term cannot stand.”  The court found this error to be “plain error” under Rule 52(b).  In the future, “to the extent a district court bases a term of incarceration substantially upon the seriousness of the offense, it would be advisable for the district court to separately state its reasons for the term of supervised release imposed.”

Patterson Belknap Webb & Tyler LLP represented Kelvin Burden, pursuant to the Criminal Justice Act, in this appeal.

-By Jessica Rice and Harry Sandick

[1]   Buchanan also made other arguments against the enforcement of the appeal waiver, which were not accepted.