Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2006

USA v. Burke
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2778




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                                                        NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                           No. 05-2778



                UNITED STATES OF AMERICA

                                 v.

                         LEVAR BURKE,
                                            Appellant



  On Appeal from a Final Judgment of Conviction and Sentence of
   the United States District Court for the District of New Jersey
                (D.N.J. Criminal No. 99-cr-00399)
             District Judge: Hon. Stanley S. Brotman



            Submitted Under Third Circuit LAR 34.1(a)
                         April 18, 2006

   Before: SLOVITER, AMBRO, and MICHEL*, Circuit Judges

                      (Filed: April 19, 2006)



                            OPINION




      *
        Hon. Paul R. Michel, Chief Judge of the United States
   Court of Appeals for the Federal Circuit, sitting by
   designation.
MICHEL, Chief Judge.

       On March 17, 2000, Levar Burke pled guilty to possession of a firearm by a

convicted felon, and was sentenced to 24 months imprisonment and three years

supervised release. On May 17, 2005, Burke admitted using marijuana and pled guilty to

a corresponding Grade C violation of supervised release, see U.S.S.G. § 7B1.1

(classifying supervised release violations), in exchange for the dismissal of 10 additional

alleged violations. Because Burke’s criminal history category was VI and he had pled

guilty to a Grade C violation, the advisory sentencing guideline range for Revocation of

Supervised Release was 8-14 months imprisonment. The court, however, was permitted

to require Burke to serve in prison “all or part of the term of supervised release authorized

by statute for the offense that resulted in such term of supervised release,” 18 U.S.C. §

3583(e)(3), which equated to 20 months, 24 days remaining on the supervised release

term for the original offense of possession of a firearm by a convicted felon.

       Following testimony by the defendant and argument from both sides, the district

court revoked supervised release and sentenced Burke to 17 months incarceration. Burke

appeals, arguing first that United States v. Booker, 

(2005), lessened the

“plainly unreasonable” standard of review applicable to violations of supervised release

from the federal sentencing guidelines, see 18 U.S.C. § 3742(e)(4), and second that the

sentence imposed was unreasonable. Because we affirm the district court’s sentence

under the less deferential standard of “reasonableness”, we need not decide which

standard of review applies to violations of supervised release, post-Booker.

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                                              I

       We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). See

United States v. Cooper, 

, 328 (3d Cir. 2006).

                                              II

       When a district court imposes a longer prison sentence in a Revocation of

Supervised Release proceeding, it must “consider” the now advisory sentencing range

under U.S.S.G. § 7B1.4(a), as well as “state on the record its general reasons under

section 3553(a) . . . for imposing a more stringent sentence.” United States v. Blackston,

, 894 (3d Cir. 1991). “[T]here is no requirement that the district court make

specific findings with respect to each of the section 3553(a) factors that it considered.”

Rather, the court must simply give meaningful consideration to the section

3553(a) factors and address any argument raised by a party that has recognized legal

merit. United States v. Cooper, 

, 329 (3d Cir. 2006).

       On appeal, Burke argues that the 17-month term of imprisonment imposed by the

district court was unreasonable given his substantial assistance to authorities, his

longstanding history of mental health issues, and physical injuries he suffered in prison

following a seizure and fall. Burke also asserts that his sentence violates section 3553(a)

because it is greater than necessary to meet the purposes of sentencing.

       We disagree. The record shows that the district court explicitly acknowledged the

advisory guideline range and considered each of Burke’s three arguments in support of

leniency. The judge referenced a letter he received from Burke articulating his feelings

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regarding sentencing, and asked the defendant to restate his feelings on the record. The

judge questioned Burke about his repeated failure to take his medication and comply with

court-ordered drug testing. Finally, the judge considered the government’s request for an

upward departure from the guideline range owing to the downward departure in the

original sentence giving rise to the term of supervised release, possession of a firearm by

a convicted felon, and in light of the defendant’s history of recidivism.

       The sentence imposed was warranted given the numerous occasions on which

Burke appeared before the district court and his failure to take advantage of the mental

health treatment and anger management counseling afforded him over the course of his

supervision. Burke’s history of recidivism is truly extraordinary: his criminal activity

commenced at age ten, and he reached the highest criminal history category, Category VI,

at age twenty-one. Moreover, this was Burke’s second violation of the supervised release

term imposed for the original offense of possession of a firearm by a convicted felon.

The district judge explained his decision to exceed the guideline range as follows:

       I think a lot of your problem over the years was a result of . . . various
       judges along the way feeling sorry for you and thinking or concluding that a
       certain sentence would be good for you. I looked over that record. And
       that may have given you an impetus to go on further and further so far as
       crime is concern[ed]. Somewhere along the line it’s got to stop. It’s got to
       stop . . . [U]nder the Guidelines I do have an ability to provide an upward
       departure, and I’m going to do that. I’m going to do that. And I’m going to
       do it because I feel it’s for your benefit that I do that.

In sentencing Burke to 17 months, the judge stated “I’ve given you less than I would

have”. He admonished Burke to take his psychotropic medication, commended Burke on


                                             4
his eloquence, and recommended that Burke be designated to a specific prison with

appropriate treatment facilities.

       Because the sentence imposed by the district court for violation of supervised

release was reasonable, the judgment of sentence is affirmed.




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