U.S. v. Burgess

Full title: UNITED STATES OF AMERICA, Plaintiff, v. KENNETH BURGESS, Defendant

Court: United States District Court, S.D. Ohio, Eastern Division

Date published: Jan 5, 2010

Case No. CR2-01-014 (S.D. Ohio Jan. 5, 2010)

Opinion

Case No. CR2-01-014.

January 5, 2010

ORDER

ALGENON MARBLEY, District Judge

I. INTRODUCTION

This matter is before the Court on Defendant, Kenneth Burgess's ("Burgess"), Motion to Modify Sentence. (Doc. 48.) For the reasons set forth below, Burgess' Motion is DENIED.

II. BACKGROUND

Burgess' was originally sentenced to 111 months of imprisonment on September 28, 2001. On March 20, 2002, the Government filed a Rule 35 Motion for reduction in sentence due to defendant's assistance in other criminal matters. On April 18, 2002, this Court granted the Government's motion and reduced Burgess's sentence by 36 months, from 111 months to 75 months. (Doc. 25, Order.)

On July 26, 2006, Burgess was released from prison and commenced his five-year term of supervised release. Beginning on August 3, 2006, Burgess repeatedly tested positive for cocaine. On June 5, 2007, Burgess was discharged from drug treatment, having committed numerous violations of the program. In the period between June 14, 2007, until July 23, 2007, Burgess committed three criminal offenses. On July 30, 2007, the probation officer petitioned this Court to revoke the term of supervised release and this Court issued an Order to Show Cause.

On November 14, 2007, Burgess was sentenced to 3 years of imprisonment in Madison County, Ohio, after being convicted by a jury of one count of breaking and entering and two counts of fleeing and eluding. On November 20, 2007, the probation officer filed a supplemental report informing this Court of Burgess's state court conviction and sentence. The probation officer recommended a 15 month term of incarceration to be served by Burgess consecutively to his state sentence that was imposed by Madison County.

On August 13, 2008, this Court revoked Burgess's term of supervised release and sentenced Burgess to 12 months and 1 day to be served consecutively to the sentence imposed by Madison County. The defendant did not file a notice of appeal from this sentence.

On July 24, 2009, Burgess filed the Motion to Modify Sentence currently before this Court. Burgess asks this Court to make his sentence for the violation of his supervised release concurrent with the sentence he is serving in Madison County.

III. STANDARD OF REVIEW

Under the Federal Sentencing Guidelines, "[a]ny term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release." U.S.S.G. § 7B1.3(f). The Federal Sentencing Guidelines are wholly advisory and this Court may order a sentence imposed upon revocation of supervised release to run concurrently or consecutively. 18 U.S.C. § 3584(a) ("[I]f a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively[.]"); Kimbrough v. United States, ("[U]nder Booker, the cocaine Guidelines, like all other Guidelines, are advisory only . . . it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence `greater than necessary' to achieve § 3553(a)'s purpose. . . .").

IV. LAW AND ANALYSIS

Burgess argues that nothing constructive will be gained from requiring him to serve his revoked sentence consecutively to his state prison terms. Burgess further asserts that serving his revoked sentence consecutively will cause financial and emotional strain on him and his family.

The Government argues that this Court's sentence was appropriate under the Federal Sentencing Guidelines and was justified because of the numerous violations committed by Burgess during his term of supervised release. The Government further notes that Burgess did not contest the violations or object to this Court's sentence at the time of sentencing.

This Court finds that Burgess's sentence for the violation of his supervised release was reasonable pursuant to the advisory guidelines and appropriate. Burgess's sentence of 12 months and 1 day, to be served consecutively to the sentence imposed by the State of Ohio, will not be modified.

V. CONCLUSION

For the foregoing reasons, Burgess' Motion to Modify Sentence (Doc. 48) is DENIED. IT IS SO ORDERED.