United States v. Willie J. Burke, Jr.
2017 U.S. App. LEXIS 12940
| 11th Cir. | 2017Background
- Willie Burke Jr. pleaded guilty in 2010 to being a felon in possession and as an armed career criminal and received a 180-month federal sentence.
- In 2011, Burke was convicted in Florida for multiple counts (attempted armed robbery, armed robbery with a firearm, kidnapping to facilitate a felony) and was sentenced by the state after his initial federal sentence.
- In 2016 Burke moved under 28 U.S.C. § 2255 relying on Johnson/Welch; the district court vacated his 2010 federal sentence and ordered a full de novo resentencing.
- At resentencing the probation office added three criminal-history points for the 2011 Florida sentence as a “prior sentence” under U.S.S.G. § 4A1.1(a), producing Criminal History Category V and a 57-month term.
- Burke objected that the 2011 state sentence—imposed after his original federal sentencing—was not a “prior sentence” under § 4A1.2(a), and separately argued his 1999 Florida armed-robbery conviction is not a “crime of violence.”
- The district court overruled both objections; the Eleventh Circuit affirmed, holding a vacated federal sentence is void and resentencing is de novo, so sentences imposed before resentencing count as prior sentences, and existing precedent controls the crime-of-violence issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a state sentence imposed after the original federal sentencing but before a vacatur/resentencing counts as a “prior sentence” under U.S.S.G. § 4A1.1(a)/§ 4A1.2(a) | Burke: A sentence imposed after the original sentencing is not a “prior sentence” when the term is read with reference to the original sentencing | Government/District Ct: After vacatur the original sentence is void and resentencing is de novo, so any sentence imposed before resentencing is a “prior sentence” | Court: Affirmed — vacatur renders the original sentencing void; resentencing is de novo; the 2011 state sentence counts as a prior sentence |
| Whether Burke’s 1999 Florida armed robbery conviction qualifies as a “crime of violence” under U.S.S.G. § 2K2.1(a)(4)(A) | Burke: Argued it is not a crime of violence (though acknowledged contrary precedent) | Government: Binding precedent treats Florida armed robbery as a crime of violence | Court: Held precedent controls; the 1999 conviction is a crime of violence and the argument is foreclosed |
Key Cases Cited
- United States v. Stinson, 97 F.3d 466 (11th Cir. 1996) (vacated sentence is void and resentencing may be de novo)
- United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011) (Florida robbery statute treated as a crime of violence under Guidelines)
- United States v. Fritts, 841 F.3d 937 (11th Cir. 2016) (Florida armed robbery qualifies as a crime of violence under ACCA)
- United States v. Ticchiarelli, 171 F.3d 24 (1st Cir. 1999) (contrasting view that “prior sentence” refers to sentences prior to the original sentence)
- United States v. Tidwell, 827 F.3d 761 (8th Cir. 2016) (holds intervening convictions before resentencing count as prior sentences)
- United States v. Klump, 57 F.3d 801 (9th Cir. 1995) (same conclusion as Tidwell)