United States v. Richard Burton, Jr.

ALD-087 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-2748
___________
UNITED STATES OF AMERICA
v.
RICHARD PERNELL BURTON, JR.,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 5-15-cr-00474-003)
District Judge: Honorable Jeffrey L. Schmehl
____________________________________
Submitted on Appellee’s Motion for Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 4, 2021
Before: MCKEE, GREENAWAY, Jr., and BIBAS, Circuit Judges
(Opinion filed March 2, 2021)
_________
OPINION*
_________
PER CURIAM
Pro se appellant Richard Pernell Burton, Jr. appeals from the District Court’s order
denying his motion for compassionate release under 18 U.S.C. § 3582(c)(1). Burton
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
pleaded guilty in the Eastern District of Pennsylvania to eight counts of an indictment
concerning a conspiracy to distribute more than five kilograms of cocaine. At his March
4, 2019 sentencing hearing, the District Court determined that Burton’s offense level
under the advisory Sentencing Guidelines was 27 with a criminal history category of IV.
Because of the applicable 120-month mandatory minimum term, the resulting advisory
sentencing range was 120-125 months. The District Court imposed a prison term of 120
months. His anticipated release date is October 24, 2027.
Starting in May 2020, Burton filed several motions and other documents
requesting compassionate release based on “extraordinary and compelling reasons” under
18 U.S.C. § 3582(c)(1)(A)(i). Burton argued that the COVID-19 pandemic presents an
extraordinary circumstance justifying a sentence reduction when considering his medical
conditions. He listed the following conditions: Type 2 diabetes, sleep apnea and use of a
C-Pap machine for breathing, multiple lung nodules, a bad back with two herniated discs,
three repaired hernia, hearing loss in the left ear, high cholesterol, high blood pressure,
and post-traumatic stress disorder from his military service in the Libyan War and from
his years of incarceration.1 The Government opposed Burton’s motion.
The District Court denied Burton’s motion for compassionate release. While
acknowledging that Burton’s diabetes and hypertension may place him at increased risk
of an adverse outcome from COVID-19, the District Court found that Burton has been
constitute binding precedent.
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managing his medical conditions well while incarcerated, and that those conditions were
not sufficiently serious to justify compassionate release. Further, considering Burton’s
motion assuming that his medical conditions were sufficiently severe, the District Court
concluded that compassionate release still was not warranted, noting Burton’s six prior
federal and state criminal convictions between 1988 through 2015 and finding that
Burton may be a danger to the community if released, citing U.S.S.G.§ 1B1.13.
Moreover, even assuming that Burton were not a danger to the community, the District
Court analyzed the 18 U.S.C. § 3553(a) sentencing factors and still concluded that
compassionate release was not warranted. Specifically, the District Court noted that
granting release at that time meant that Burton would have served about 16 months of his
120-month sentence, and that “releasing Burton after having served less than 15% of his
sentence would hardly reflect the seriousness of his offense nor provide just punishment
for same. In addition, a sentence this insignificant for such a serious drug crime would
not afford adequate deterrence to the potential criminal conduct of Burton in the future,
or to others who may be considering similar crimes.” (Dist. Ct. Jul. 23, 2020 Mem. Op.
at 8.)
Burton filed a timely notice of appeal, as well as his opening brief. The
Government filed a motion for summary affirmance, see 3d Cir. L.A.R. 27.4; 3d Cir.
1
Burton states that he is 54 years old. See Appellant’s Opp’n, App. A.
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I.O.P. 10.6, and to be relieved of filing a brief, see 3d Cir. L.A.R. 31.2. Burton filed a
response in opposition to summary action, as supplemented.
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s
order for abuse of decision and thus “will not disturb the District Court’s decision ‘unless
there is a definite and firm conviction that it committed a clear error of judgment in the
conclusion it reached upon a weighing of the relevant factors.’” United States v.
Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020) (alteration omitted) (quoting Oddi v. Ford
Motor Co., 234 F.3d 136, 146 (3d Cir. 2000)). We will take summary action if “no
substantial question is presented.” 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
Burton argues that the District Court improperly considered § 1B1.13 as part of its
analysis. See Appellant’s Opp’n (citing, inter alia, United States v. Jones, 980 F.3d1098,
1109 (6th Cir. 2020)). In Jones, the Sixth Circuit held that the First Step Act rendered
§ 1B1.13 inapplicable to § 3582(c)(1)(A) motions for compassionate release, noting that
until the Sentencing Commission updates § 1B1.13, the district courts have “full
discretion” to determine whether “extraordinary and compelling” reasons exist for
granting release. We have not directly addressed the applicability of § 1B1.13 in this
context, though we have noted that, under § 3582(c)(1)(A), a sentence reduction must be
“consistent with applicable policy statements issued by the Sentencing Commission.”
Pawlowski, 967 F.3d at 329 n.6.
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In any event, the District Court here did not constrain its assessment of Burton’s
motion under § 1B1.13. Notwithstanding its consideration of § 1B1.13, the District
Court proceeded to consider the relevant § 3553(a) factors, which is an explicit part of the
analysis of a motion under § 3582(c)(1)(A). Those factors include “history and
characteristics of the defendant,” “the need for the sentence imposed . . . to promote
respect for the law,” and “deterrence to criminal conduct.” See Pawlowski, 967 F.3d at
330 (quoting 18 U.S.C. § 3553(a)(1) and (2)(A)-(B)). The District Court’s decision
clearly reflects as much.
Burton presents information and argument concerning his medical conditions and
risk of severe illness from COVID-19, but the District Court considered Burton’s motion
even assuming that his medical conditions were sufficiently severe to warrant
compassionate release. Burton also states, “I have done my time and paid my debt to
society” for his past crimes, and he contends that his involvement in the drug conspiracy
was less serious than the indictment suggests. Appellant’s Opp’n, App. A. To the extent
that Burton argues that the District Court should have placed more weight on his medical
conditions, and less weight on his offense conduct, we cannot conclude that the Court
abused its discretion in weighing the factors in the way it did. See Pawlowski, 967 F.3d
at 331. We discern no clear error in the District Court’s conclusion after analyzing the
§ 3553(a) sentencing factors, including the substantial proportion of Burton’s sentence
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yet to be served, indicating the need for the sentence to reflect the seriousness of the
offense and to afford adequate deterrence to future offenses.
For these reasons, we grant the Government’s motion and will summarily affirm
the District Court’s order. The Government’s motion to be relieved of filing a brief is
granted.
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