United States District Court, D. Minnesota
Michael L. Cheever, Assistant United States Attorney,
Minneapolis, MN, on behalf of Plaintiff.
Michael Anthony Burns, pro se.
H. Meyers, Assistant Federal Defender, Minneapolis, MN, on
behalf of Defendant.
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant Michael Anthony Burns'
(“Burns”) Motion to Adjust Sentence Pursuant to
18 U.S.C. § 3582(c) [Docket No. 74]. Burns requests a
reduction of his sentence in light of 18 U.S.C. §
3582(c)(1)(B) and Section 404 of the First Step Act
(“FSA”). For the reasons set forth below
Burns' Motion is granted in part.
August 2, 2006, Burns entered a plea of guilty to possession
with intent to distribute in excess of 50 grams of cocaine
base (Count 3), in violation of 21 U.S.C. §§ 841
(a)(1) and (b)(1)(A). The statutory penalty for Count 3 was
10 years to life imprisonment and at least 5 years supervised
release. The Plea Agreement [Docket No. 28] states that Burns
and the government agreed that “on or about May 2,
2006” Burns did possess with the intent to distribute
more than 50 grams of cocaine base or “crack.”
The parties agreed that the weight of the cocaine base
possessed “during the period of the conspiracy is
between 150 and 500 grams.” Id. at 3. The
government also negotiated a waiver of right to appeal the
sentence “in the event the court accepts the plea
agreement and sentences the defendant at or below 210 months
imprisonment.” Id. at 7.
November 8, 2006, Burns was sentenced to 210 months and 5
years of supervised release. The applicable advisory
guideline range was 262-327 months based on a total offense
level of 34, with a criminal history Category VI. Statement
of Reasons, 11/14/2006. The Court used the Sentencing
Guidelines in an advisory fashion. Id. The
Court's reason for a substantial downward departure from
the Guidelines was that “[g]iven the defendant's
history and medical condition, and for other reasons stated
on the record, a sentence of 210 months is reasonable and
consistent with the considerations for sentencing expressed
in 18 U.S.C. § 3553.”
being in custody, Burns' disciplinary record has been
clean, and he has earned a significant amount of good conduct
credit. He has also taken advantage of many educational
opportunities offered by the Bureau of Prisons. Without any
good conduct credits, Burns' release date would be
October 30, 2023.
now moves under the First Step Act of 2018 to reduce his
sentence to time served. The Government does not oppose a
sentence reduction, but argues Burns' sentence should be
reduced to 192 months rather than time served.
Fair Sentencing Act of 2010 reduced sentencing disparities
between individuals convicted of crack cocaine crimes and
those of powder cocaine crimes. 21 U.S.C. §
841(b)(1)(A)(iii). The Fair Sentencing Act increased the
amount of crack cocaine needed to trigger the penalties of
§ 841(b)(1)(A) from 50 grams to 280 grams of crack and
the penalties of § 841(b)(1)(B) from 5 grams to 28
grams. When it was initially passed, Congress did not make
the Fair Sentencing Act retroactive, which means that
individuals sentenced before enactment were not considered
for relief from the statutory penalties under which they were
sentenced. This recently changed. The First Step Act of 2018
expressly permits the Court to consider a sentence reduction
for individuals sentenced before 2010. It states:
A court that imposed a sentence for a covered offense may, on
motion of the defendant, the Director of the Bureau of
Prisons, the attorney for the government, or the court,
impose a reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act of ...