United States District Court, E.D. North Carolina, Western Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE
20, 2010, without a written plea agreement, Rodney Burrell
("Burrell") pleaded guilty to possession with the
intent to distribute five grams of more of cocaine base
(crack), and aiding and abetting. See [D.E. 25, 41].
On August 10, 2012, the court held Burrell's resentencing
hearing. See [D.E. 67, 68, 76]. At the hearing, the
court adopted the facts set forth in the Presentence
Investigation Report ("PSR"). See Fed. R.
Crim. P. 32(i)(3)(A)-(B); Sentencing Tr. [D.E. 76] 4-6. The
court calculated Burrell's total offense level to be 19,
his criminal history category to be IV, and his advisory
guideline range to be 46 to 57 months' imprisonment.
See Sentencing Tr. at 4-6. The court then upwardly
departed under U.S.S.G. § 4A1.3 to a criminal history
category of VI, a total offense level of 30, and an advisory
guideline range of 168 to 210 months' imprisonment.
See Id. at 6-55. After thoroughly
considering all relevant factors under 18 U.S.C. §
3553(a), the court sentenced Burrell to 210 months'
imprisonment. See Id. at 55-84. In imposing
the sentence, the court announced that it would impose the
same sentence as an alternative variant sentence if it
miscalculated the advisory guideline range or erroneously
upwardly departed. See Id. at 82. Burrell
appealed. On October 17, 2013, the United States Court of
Appeals for the Fourth Circuit affirmed this court's
judgment. See United States v. Burrell, 543
Fed.Appx. 290, 291-93 (4th Cir. 2013) (unpublished).
January 29, 2016, Burrell moved for a sentence reduction
under 18 U.S.C. § 3582(c)(2), U.S.S.G. § IB 1.10,
and Amendment 782. See [D.E. 86]. On the same date,
the government responded in opposition. See [D.E.
87]. On February 5, 2016, Burrell replied. See [D.E.
88]. Burrell's new advisory guideline range is 37 to 46
months' imprisonment, based on a total offense level of
17 and a criminal history category of IV. See
Resentencing Report. Burrell requests a 175-month sentence.
See id.; [D.E. 86].
court has discretion under Amendment 782 to reduce
Burrell's sentence. See, e.g., Chavez-Meza v. United
States. 138 S.Ct. 1959, 1963-68 (2018); Dillon v.
United States. 560 U.S. 817, 827 (2010); United
States v. Peters, 843 F.3d 572, 574 (4th Cir. 2016);
United States v. Patterson. 671 Fed.Appx. 105,
105-06 (4th Cir. 2016) (per curiam) (unpublished); United
States v. Cole. 618 Fed.Appx. 178, 178-79 (4th Cir.
2015) (per curiam) (unpublished); United States v.
Thomas. 546 Fed.Appx. 225, 225-26 (4th Cir. 2013) (per
curiam) (unpublished); United States v. Perez. 536
Fed.Appx. 321, 321 (4th Cir. 2013) (per curiam)
(unpublished); United States v. Smalls. 720 F.3d
l93, 195-97 (4th Cir. 2013): United States v. Mann.
709 F.3d 301.306-07 (4th Cir. 2013): United States v.
Stewart. 595 F.3d 197, 200 (4th Cir. 2010). In deciding
whether to reduce Burrell's sentence, the court finds
that Burrell engaged in serious criminal behavior.
See PSR ¶¶ 4-5. Moreover, Burrell is a
violent recidivist, a validated gang member, and has
convictions for voluntary manslaughter, possession with
intent to sell and deliver marijuana, and possession with
intent to sell and deliver cocaine. See PSR
¶¶ 8-10; Sentencing Tr. at 55-84. Burrell has
performed poorly on supervision and has never been employed.
See id, PSR ¶¶ 9, 12, 22. Burrell has
taken some positive steps while incarcerated on his federal
sentence, but he has sustained disciplinary infractions for
refusing to obey an order (four times), being insolent to a
staff member (two times), using martial arts/boxing, and
interfering with taking count. See Resentencing
Report; [D.E. 88-2]; [D.E. 88-3]; cf Pepper v.
United States. 562U.S. 476, 491 (2011).
reviewed the entire record and all relevant policy
statements, the court finds that Burrell received the
sentence that was "sufficient, but not greater than
necessary" under 18 U.S.C. § 3553(a). Further
reducing Burrell's sentence would threaten public safety
in light of his serious criminal conduct, serious criminal
history, and repeated misconduct while incarcerated.
Cf. U.S.S.G. § 1B1.10, cmt. n.1(B)(ii). Thus,
the court denies Burrell's motion for reduction of
sentence under Amendment 782. See, e.g..
Chavez-Meza. 138 S.Ct. at 1963-68;
Patterson. 671 Fed.Appx. at 105-06; Cole.
618 Fed.Appx. at 178-79; Thomas. 546 Fed.Appx. at
225-26; Perez. 536 Fed.Appx. at 321.
the court DENIES Burrell's motion for reduction ...