United States v. Burroughs
691 F. App'x 31
| 2d Cir. | 2017Background
- In 2009, Antoine Burroughs and co-defendant Leon Whitefield attempted to rob Bartolomeo "Romeo" Antoniello; they brutally assaulted Romeo and his son Gerardo "Jerry" Antoniello, during which Burroughs’s gun discharged and killed Jerry.
- Burroughs pleaded guilty to conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery (18 U.S.C. § 1951).
- The parties’ plea agreement stipulated a Guidelines calculation yielding offense level 40 and Criminal History Category I (range 292–365 months).
- The Probation Office recommended the statutory maximum (40 years) given the crime’s brutality and lack of remorse; the District Court sentenced Burroughs to 405 months’ imprisonment.
- On appeal, Burroughs argued his sentence was procedurally and substantively unreasonable and that his convictions for conspiracy and attempt violated the Double Jeopardy Clause.
- The Second Circuit affirmed, rejecting the Rule 32(h) notice argument, finding the upward variance supported by § 3553(a) factors, and holding Burroughs waived his double jeopardy claim by pleading guilty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural reasonableness: failure to give Rule 32(h) notice of upward variance | Gov't: sentence was a variance under § 3553(a), not a Guidelines departure, so Rule 32(h) notice not required | Burroughs: court failed to give advance notice required by Rule 32(h) before varying upward | Affirmed: Rule 32(h) applies only to departures; court imposed a variance under § 3553(a). Even if viewed as departure, grounds were disclosed in PSR and government submission. |
| Substantive reasonableness of upward variance | Gov't: § 3553(a) factors (egregious brutality, lack of remorse) justified above-Guidelines sentence | Burroughs: sentence is substantively unreasonable and outside permissible range | Affirmed: sentencing court reasonably applied § 3553(a); sentence within range of permissible decisions. |
| Double jeopardy challenge to convictions for conspiracy and attempt | N/A | Burroughs (joining co-defendant): convictions for conspiracy and attempted robbery violate Double Jeopardy | Rejected/Waived: guilty plea waived the double jeopardy claim; no plain-record double jeopardy error shown. |
| (Joined arguments) Adoption of co-defendant’s appellate arguments | N/A | Burroughs adopted Whitefield’s brief arguments where applicable | No relief: adopted arguments either waived or without merit. |
Key Cases Cited
- United States v. Bonilla, 618 F.3d 102 (2d Cir. 2010) (standard of review for sentencing; procedural and substantive components)
- United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc) (procedural and substantive reasonableness principles; § 3553(a) review)
- Broce v. United States, 488 U.S. 563 (1989) (guilty plea waives certain collateral challenges, including double jeopardy claims except in narrow record-based exceptions)
- Irizarry v. United States, 553 U.S. 708 (2008) (distinction between Guidelines "departures" and § 3553(a) "variances"; Rule 32(h) notice applies to departures)
- United States v. Farhane, 634 F.3d 127 (2d Cir. 2011) (attempt and conspiracy to commit same object can be distinct offenses; discussed in double jeopardy context)