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United States of America v. Christopher Burnell
Case Number: 20-1808
Judge: Leonard Steven Grasz
Court: United States Court of Appeals
For the Eighth Circuit
St. Louis, MO - Criminal defense lawyer represented defendant with possessing more than five grams of crack with the intent to distribute, and knowingly carrying a firearm in relation to a drug trafficking crime charges.
Christopher Burnell pled guilty to possessing more than five grams of crack
with the intent to distribute, see 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), and knowingly
carrying a firearm in relation to a drug trafficking crime. See 18 U.S.C.
§ 924(c)(1)(A). He received a total sentence of 262 months for both counts. After
the First Step Act’s passage in 2018, Burnell moved to reduce his sentence. The
district court1 denied his motion after concluding that the First Step Act did not
change Burnell’s United States Sentencing Commission Guidelines Manual
(“Guidelines”) range given his status as a career offender. Burnell now appeals.
“We review de novo the applicability of the First Step Act to a defendant’s
case . . . [and] review for an abuse of discretion the district court’s decision to grant
or deny an authorized sentence reduction.” United States v. McDonald, 944 F.3d
769, 771 (8th Cir. 2019). “Under the First Step Act, a court that imposed a sentence
for an offense whose penalties were modified by the Fair Sentencing Act of 2010
may impose a reduced sentence.” United States v. Banks, 960 F.3d 982, 984 (8th
Cir. 2020) (citing First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat.
5194, 5222). The First Step Act “makes certain provisions of the Fair Sentencing
Act retroactive. As relevant here, section 404(b) . . . allows a district court to
‘impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010
. . . were in effect at the time the covered offense was committed.’” McDonald, 944
F.3d at 771 (quoting First Step Act § 404(b)).
Once a district court determines that a defendant is eligible2 for a sentence
reduction, it has “substantial discretion” to choose whether to reduce the sentence
under § 404. United States v. Hoskins, 973 F.3d 918, 921 (8th Cir. 2020). Here,
despite Burnell’s eligibility, the district court denied him relief after “taking into
account the policy statement set forth at [Guidelines] § 1B1.10 and the sentencing
factors set forth in 18 U.S.C. § 3553(a)[.]” It reasoned that Burnell’s Guidelines
range “will not be reduced” based on the First Step Act because, as a career offender,
The Honorable Susan O. Hickey, Chief Judge, United States District Court
for the Western District of Arkansas.
The government does not challenge that Burnell’s conviction for possessing
more than five grams of crack with the intent to distribute, see 21 U.S.C. § 841(a)(1),
(b)(1)(B)(iii), is a “covered offense” and makes him eligible for relief under the First
Step Act. See United States v. Haynes, 968 F.3d 869, 870 (8th Cir. 2020).
his “range for imprisonment would still be determined using [Guidelines]
Burnell advances two main arguments on appeal. He first argues that the
district court misunderstood its First Step Act authority and erred by “tether[ing]”
its decision to the Guidelines. We disagree. We have said before that “tethered” is
a word without “legal or sentencing bona fides.” United States v. Harris, 960 F.3d
1103, 1106 (8th Cir. 2020) (cleaned up). Contrary to Burnell’s assertions, the district
court never said it “could not” or “may not” reduce his sentence because the First
Step Act did not change his Guidelines range. Instead, it said his “term of
imprisonment will not be reduced” because his “[G]uideline[s] range of
imprisonment [did] not change” under the First Step Act. This was not legal error.
See Harris, 960 F.3d at 1106 (quoting First Step Act § 404(c) (“Nothing in [§ 404]
shall be construed to require a court to reduce any sentence pursuant to this section.”
(emphasis added))). Here, the district court simply explained that it would not
exercise its “substantial discretion” to reduce Burnell’s sentence, Hoskins, 973 F.3d
at 921, because the First Step Act did not affect his Guidelines range—which
ultimately depended on the application of § 4B1.1(c)(3) to his firearms count. See
18 U.S.C. § 924(c)(1)(A). We read this as a “plain statement regarding [the district
court’s] decision not to exercise its discretion[,]” rather than a legal statement that
the district court saw itself as bound by or “tethered” to the Guidelines. United States
v. Howard, 962 F.3d 1013, 1015 (8th Cir. 2020). And such a “plain statement” is
enough to “close the matter.” Id.
Burnell next argues that the district court incorrectly treated him as a career
offender because one of his underlying Arkansas convictions—fleeing under Ark.
Code § 5-54-125—is not a violent crime. Not so. Even assuming Burnell is correct
in his assertions about Arkansas law, the problem with his argument is his unspoken
premise that, in First Step Act resentencing, a district court is required to reassess
earlier sentencing decisions unaffected by the Fair Sentencing Act. But § 404(b)
only requires that a district court reassess the original sentence “as if sections 2 and
3 of the Fair Sentencing Act . . . were in effect at the time  the covered offense was
committed.” McDonald, 944 F.3d at 772 (quoting First Step Act § 404(b)). As such,
it “makes retroactive only certain statutory changes pertaining to threshold crack
cocaine weights triggering mandatory minimum sentences[.]” United States v.
Grant, 813 F. App’x. 246, 249 (8th Cir. 2020) (unpublished) (quoting United States
v. Wiseman, 932 F.3d 411, 417 (6th Cir. 2019)).3
Outcome: For these reasons, we affirm the judgment of the district court.