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Burch v. United States

United States District Court, D. Maryland

May 7, 2018

TAT BURCH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          MEMORANDUM

          Ellen L. Hollander United States District Judge

         This 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.

         No hearing is necessary to resolve the Petition. See 28 U.S.C. § 2255(b). For the reasons that follow, I shall deny the Petition.

         I. Background

         On 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.

         Notably, 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).

         Sentencing 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.[1]

         Judge 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.[2] 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.

         Following the sentencing, Burch did not appeal his conviction or his sentence. He was released to supervised release on October 26, 2017.[3]

         On 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.

         Thereafter, 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.

         On 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.

         II. Discussion

         Petitioner contends that the convictions of second degree assault and resisting arrest do not qualify as a “crime of violence.” As a result, he ...


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