United States District Court, D. Maryland
L. Hollander United States District Judge
Memorandum resolves a Petition filed by counsel under 28
U.S.C. § 2255, on behalf of Tat Burch, Petitioner. ECF
1481. Burch was one of 28 defendants indicted in February
2008 on multiple charges, including conspiracy to distribute
and possess with intent to distribute controlled substances
and possession of a firearm by a convicted felon. The case
was assigned to Judge William D. Quarles, Jr., who has since
retired. It was reassigned to me on January 29, 2016.
hearing is necessary to resolve the Petition. See 28
U.S.C. § 2255(b). For the reasons that follow, I shall
deny the Petition.
August 13, 2009, Mr. Burch entered a plea of guilty to Count
13 of the Indictment, charging him with being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). See ECF 573. The plea was entered
pursuant to a Plea Agreement, docketed at ECF 577.
the plea was entered under Fed. R. Crim. P. 11(c)(1)(C), in
which the parties stipulated to a sentence of 120 months'
imprisonment. See ECF 577, ¶ 9. Pursuant to the
Plea Agreement (ECF 577), the parties also stipulated that
the defendant committed the offense at issue
“subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled
substance offense, pursuant to U.S.S.G. §
2K2.1(a)(2).” Id. ¶ 6(a).
was held on January 6, 2009. ECF 746. The Presentence Report
(“PSR”), ¶ 16, assigned a base offense level
of 24 for the offense under U.S.S.G. § 2K2.1(a)(2),
based on the determination that Burch had two prior felony
convictions for crimes of violence.
Quarles determined that Petitioner's base offense level
was 24. Presumably, this was based on Burch's two prior
convictions for crimes of violence: second degree assault and
resisting arrest. See U.S.S.G. § 2K2.1(a)(2);
U.S.S.G. § 4B1.1. Burch earned three deductions for
acceptance of responsibility. Therefore, according to the
Statement of Reasons (ECF 758), Burch's final offense
level was 21, with a criminal history category of III. This
yielded a sentencing guidelines range of 46 to 57 months'
imprisonment. However, pursuant to the C Plea, Judge Quarles
imposed a sentence of 120 months' incarceration, with
credit from August 23, 2007, and three years of supervised
release. ECF 757.
the sentencing, Burch did not appeal his conviction or his
sentence. He was released to supervised release on October
March 7, 2016, i.e., prior to Burch's release to
supervised release, the Federal Public Defender sought
appointment to represent Burch and many other defendants who
were considered potentially eligible for relief under 28
U.S.C. § 2255, in light of the Supreme Court's
decision in Johnson v. United States, __U.S.__, 135
S.Ct. 2251 (2015). See ECF 1461. Then Chief Judge
Catherine Blake granted the motion. Id.
on June 2, 2016, the Office of the Federal Public Defender
filed the Petition under 28 U.S.C. § 2255. ECF 1481.
Petitioner argued that the Court's sentence of 120
months' imprisonment was predicated on the erroneous
conclusion that the defendant's prior record included two
offenses under Maryland law that qualified as crimes of
violence: second degree assault and resisting arrest. On July
20, 2017, the Federal Public Defender moved to withdraw as
counsel for Petitioner. See ECF 1527. I approved
that motion on the same date. ECF 1528.
February 23, 2018, the government filed its response to
Petition. ECF 1531. Mr. Burch has not replied, and the time
to do so has expired.
contends that the convictions of second degree assault and
resisting arrest do not qualify as a “crime of
violence.” As a result, he ...