United States v. Burrus

UNITED STATES OF AMERICA, v. CHRISTIAN BURRUS, Defendant.

Criminal No. 19-284

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

July 7, 2020

Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court is a motion for compassionate release filed by Defendant Christian Burrus and the Government's opposition thereto. (Docket Nos. 40; 46). Defendant's motion has been exhaustively briefed by the parties and supplemented with exhibits, including medical records filed under seal with the Court. (Docket Nos. 40; 42; 43; 46; 51; 52; 55; 58). After careful consideration of the parties' arguments in light of the prevailing legal standards, and for the following reasons, Defendant's motion [40] is denied, as the Court declines to exercise its discretion to reduce his sentence.

II. BACKGROUND

Defendant is presently serving a sentence of 48 months' incarceration imposed by this Court on February 21, 2020 following his conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), for conduct occurring on July 23, 2018. (Docket No. 35). As the Court detailed in its Memorandum Opinion denying his suppression motion, on that date, Defendant was a passenger in a vehicle which was pulled over for an expired registration on Frankstown Road in Penn Hills. See United States v. Burrus, 402 F. Supp. 3d 116, 119-121 (W.D. Pa. Aug. 29, 2019). The responding officer ran an NCIC check on Defendant and determined that there was an outstanding warrant for his arrest, subjected him to a patdown search and recovered a stolen 9-millimeter firearm from his waistband. See id.

Defendant was initially charged in state court but the case was adopted federally, with a federal grand jury returning an indictment against him on October 9, 2018 with one count of possession of a firearm by a convicted felon in violation of § 922(g)(1). Id. He was in custody of the Allegheny County Jail at the time of the indictment awaiting disposition of state charges and brought to federal court pursuant to a writ of habeas corpus ad prosequendum. (Docket No. 7). He was later transferred to the Indiana County Jail in January of 2019 where he was held in presentence custody.

After the suppression motion was denied, the parties reached a plea agreement, the terms of which included Defendant pleading guilty to a revised § 922(g)(1) charge set forth in an information, the dismissal of the original indictment and also preserved his ability to appeal this Court's suppression ruling. (Docket No. 7-1). At sentencing, the parties did not dispute that the advisory guidelines range was 63 to 78 months' incarceration based upon a total offense level of nineteen and a criminal history category of VI. (Docket No. 26). The defense moved for a downward departure and a downward variance, both of which were contested by the Government, with its counsel advocating for a sentence within the advisory guidelines range. (Docket No. 34). The Court invited the parties to present evidence and the defense provided the Court with supporting character letters, medical records and certificates and other information pertaining to programs he completed while in presentence custody at the Allegheny County Jail and Indiana County Jail. (Docket Nos. 29; 34). Defendant's mother, Audrey Burrus, testified and he also made a statement to the Court. (Docket No. 34).

After hearing argument from counsel, the Court denied Defendant's motion for downward departure under Guideline § 4A1.3(b), finding that he had not demonstrated that his criminal history category of VI "substantially over-represents the serious of [his] criminal history or the likelihood that [he] will commit other crimes." U.S.S.G. § 4A1.3(b)(1). In declining to exercise its discretion to depart, the Court noted that Defendant's criminal record showed a pattern of recidivism and that light treatment by the state system failed to dissuade him from committing the same type of offense in the instant case. See Sent. Hr'g Trans. 2/21/20. Specifically, the Court referenced that:

• Defendant's prior state cases were appropriately counted under the guidelines because they took place on different days between June of 2003 and August of 2004 and were separated by intervening arrests;

• each of these four criminal incidents involved unlawful possession of firearms;

• he also had convictions for DUI in 2009, an escape in 2011, and possession of controlled substances in 2016, with a stolen firearm being located in the vehicle within which he was pulled over; and,

• his juvenile record did not result in criminal history points but was troubling including four separate robbery cases and an assault.

Id. Defendant was also on probation when he was arrested and found in possession of a firearm on June 23, 2018. (See PIR)

The Court heard additional argument as to Defendant's motion for variance and the application of the section 3553(a) factors, and then granted his motion, in part, varied downward from the advisory guidelines range of 63 to 78 months' incarceration and imposed a sentence of 48 months' incarceration. See Sent. Hr'g Trans. 2/21/20. The Court specifically found that such sentence was sufficient, but not greater than necessary to meet all of the goals of sentencing in thiscase. See 18 U.S.C. § 3553(a). The Court detailed factual and legal support for the variance on the record and noted on the Statement of Reasons form that the variance was based on the following: Defendant's mental and emotional health conditions, including post-traumatic stress disorder and depression; his pre-sentence rehabilitation efforts, as was reflected in his pursuit and completion of various programs while incarcerated; and his exhibition of genuine remorse for his criminal behavior during his allocution and admissions to family and friends of the wrongfulness of his conduct. See Sent. Hr'g Trans. 2/21/20. As part of its discussion, the Court commented on: Defendant's age, 38; his difficult upbringing; his family ties and responsibilities to his children, who were being cared for by their mothers and/or grandparents; and, his physical ailments including diabetes and hypertension but that such conditions appeared to be controlled with medications as well as recent weight loss. Id. In addition to the 48-month term of incarceration, the Court imposed a term of supervised release of 3 years with standard and additional conditions; waived any fine; ordered him to pay a $100 special assessment and to forfeit the firearm to the United States. (Docket No. 35). The Court also deferred ruling to the State Court as to whether the sentence should run concurrently or consecutively to any sentence for the violations at Allegheny Court of Common Pleas Docket No. 02-CR-002222-2017. (Id.).

Defendant filed a Notice of Appeal on March 5, 2020 challenging the Court's suppression ruling. (Docket Nos. 37; 38). His appeal remains pending before the U.S. Court of Appeals for the Third Circuit at Appeal No. 20-1521. (Docket No. 39). A review of the state court docket indicates that Defendant's case is "inactive" and that an "order closing interest" was filed on June 17, 2020. See Comm. v. Burrus, Docket No. 02-CR-002222-2017, (C.P. Allghy) available at: https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-02-CR-0002222-2017&dnh=YIeRtozmchWmpRtTDQFTPg%3d%3d (last visited 7/7/2020).

Subsequent to the sentencing hearing, the U.S. Marshal Service transferred Defendant from the Indiana County Jail to the Northeast Ohio Correctional Center ("NEOCC") while he awaited designation to a Bureau of Prisons ("BOP") facility. (See Docket No. 52 at 8). Due to the COVID-19 pandemic, BOP transfers of inmates were initially stopped in March of 2020 and while some transfers of prisoners have taken place more recently, the practice has slowed considerably from pre-March 2020 levels. (See Docket Nos. 40; 46). As a result, Defendant remains housed at the NEOCC awaiting designation to a BOP facility. (Id.). The NEOCC reported its first case of COVID-19 on June 18, 2020. (Docket No. 58). The latest information provided to the Court indicates that there have been eight (8) positive COVID-19 tests among the federal inmate population at the NEOCC but that three (3) of those inmates have fully recovered.

As noted, Defendant seeks compassionate release under the First Step Act's recent amendments to 18 U.S.C. § 3582. (Docket Nos. 40; 51; 58). He argues that his diabetes diagnosis coupled with the ongoing COVID-19 pandemic serve as extraordinary and compelling reasons to reduce his sentence. (Id.). He admits that recent medical records from the NEOCC state that he has not been prescribed insulin for his diabetes since February 27, 2020 with the medical notes stating that such condition is "lifestyle controlled" due to recent weight loss and diet changes. (Docket No. 51). However, he contends that he is unable to manage his condition and provide self-care in the pandemic environment given his mental health issues and the conditions at the prison. (Id.). The Government concedes that Defendant was diagnosed with Type II diabetes in October of 2019; that the CDC recognizes diabetes as a risk factor for COVID-19; and that his diabetes satisfies the definition of "extraordinary and compelling reasons" for which a court may grant compassionate release. (Docket No. 55). The Government also does not contest that Defendant has exhausted his administrative remedies since he is not technically in BOPcustody. (Id.). However, the Government opposes any reduction in Defendant's sentence after a full consideration of the relevant section 3553(a) factors, particularly as to his extensive criminal history placing him in criminal history category VI; his demonstrated recidivism committing repeated firearms offenses; prior violations of court conditions; and commission of crimes while under court supervision. (Id.). The Government also relates...