Petition for Writ of Certiorari — Jacoby Burns, Petitioner v. United States

Supreme Court briefJan 26, 2019

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Appendix A-4

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA,

PLAINTIFF,

vs.

JACOBY BURNS,

DEFENDANT.

eee ee et ee ee ee eet ee ee ee ee

DOCKET NUMBER

1:16-CR-221-LMM

ATLANTA, GEORGIA

OCTOBER 28, 2016

TRANSCRIPT OF SENTENCING PROCEEDINGS

BEFORE THE HONORABLE LEIGH MARTIN MAY,

UNITED STATES DISTRICT JUDGE

APPEARANCES:

FOR THE PLAINTIFF:

FOR THE DEFENDANT:

LAUREL BOATRIGHT

UNITED STATES ATTORNEY'S OFFICE

ATLANTA, GEORGIA 30303

PAUL COGNAC

PEACHTREE CITY, GEORGIA 30269

MECHANICAL STENOGRAPHY OF PROCEEDINGS

AND COMPUTER-AIDED TRANSCRIPT PRODUCED BY

OFFICIAL COURT REPORTER:

MONTRELL VANN, RPR, RMR, RDR, CRR

2160 UNITED STATES COURTHOUSE

75 TED TURNER DRIVE, SOUTHWEST

ATLANTA, GEORGIA 30303

(404) 215-1549

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

(IN ATLANTA, FULTON COUNTY, GEORGIA, OCTOBER 28, 2016, IN

OPEN COURT.)

THE COURT: OKAY. GOOD AFTERNOON. YOU MAY BE SEATED.

MS. BOATRIGHT: GOOD AFTERNOON, YOUR HONOR.

MR. COGNAC: GOOD AFTERNOON.

THE COURT: WE ARE HERE IN CRIMINAL ACTION 16-CR-221,

UNITED STATES OF AMERICA VS. JACOBY BURNS.

AND IF COUNSEL WOULD INTRODUCE THEMSELVES FOR THE RECORD,

PLEASE.

MR. COGNAC: PAUL COGNAC ON BEHALF OF MR. BURNS, YOUR

HONOR.

THE COURT: OKAY. GOOD AFTERNOON.

MS. BOATRIGHT: LAUREL BOATRIGHT ON BEHALF OF THE

UNITED STATES OF AMERICA, JUDGE.

THE COURT: GOOD AFTERNOON.

GOOD AFTERNOON TO YOU AS WELL, MR. BURNS.

MR. BURNS: GOOD AFTERNOON, MA'AM.

THE COURT: WE ARE HERE TODAY FOR MR. BURNS'

SENTENCING. ON AUGUST 16TH, 2016, MR. BROWN PLED GUILTY TO THE

SINGLE COUNT IN THE INDICTMENT WHICH IS THE OFFENSE OF HEROIN

DISTRIBUTION. IT'S MY UNDERSTANDING FROM REVIEWING THE RECORD

THAT THERE ARE SOME OBJECTIONS TO THE PRESENTENCE REPORT THAT WE

NEED TO TAKE UP FIRST. AND ALTHOUGH THERE MAY BE MULTIPLE

OBJECTIONS, I THINK REALLY THE MAJOR ONE I'D LIKE TO TALK ABOUT

FIRST IS THE OBJECTION TO THE APPLICATION OF THE ENHANCEMENT FOR

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

THE CAREER OFFENDER, THE ISSUES ABOUT THE FELONY OBSTRUCTION

BEING A CRIME OF VIOLENCE.

AND WHAT WE'LL DO, MR. COGNAC, IS I'LL HEAR FROM YOU ON

THAT FIRST, AND THEN I'LL HEAR FROM MS. BOATRIGHT ON THAT, AND

THEN AFTER WE GET THROUGH THAT ISSUE, IF THERE ARE ADDITIONAL

OBJECTIONS, WE CAN GO THROUGH THOSE AFTER THAT. BUT LET'S TAKE

UP THIS ONE ISSUE FIRST.

MR. COGNAC: AND I HAVE SUPPLIED THE GOVERNMENT, AND I

HAVE ONE, ALTHOUGH IT -- THIS ISSUE IS SOMEWHAT CONVOLUTED. AND

THE FEDERAL DEFENDER'S PROGRAM HAS PREPARED A FLOW CHART --

THE COURT: OKAY.

MR. COGNAC: ~- IN HOW TO DEAL WITH CAREER OFFENDERS

AND WHETHER WE GO WITH THE CATEGORICAL APPROACH OR THE MODIFIED

CATEGORICAL APPROACH.

THE COURT: OKAY.

MR. COGNAC: WE ACKNOWLEDGED AT THE OUTSET THAT THERE

IS AN ELEVENTH CIRCUIT CASE DEALING WITH THE ARMED CRIMINAL --

ARMED CAREER CRIMINAL ACT, U.S. V. BROWN THAT IS AT 805 F.3D

1325, WHICH DEFINES FELONY OBSTRUCTION AS A CRIME OF VIOLENCE

FOR THE ARMED CAREER CRIMINAL ACT. HOWEVER, AND THERE ARE SOME

OTHER EARLIER DECISIONS WHICH ALSO FIND SIMILARLY. HOWEVER,

THOSE PRIOR DECISIONS WERE BEFORE KIND OF THE WATERSHED CASE OF

DESCAMP (PHONETIC) WHICH REALLY DEALS WITH HOW DO WE DETERMINE

WHETHER SOMETHING QUALIFIES AS A VIOLENT FELONY -- A CRIME OF

VIOLENCE, AND, IF SO, DO WE USE A CATEGORICAL OR A MODIFIED

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

CATEGORICAL APPROACH. THAT PARTICULAR DECISION DEALT WITH

BURGLARY. AND AT THE TIME WE ARE OPERATING UNDER 4B1.2A, THE

DEFINITION THAT'S COMMONLY REFERRED TO AS THE ELEMENTS CLAUSE.

AND WE TAKE THE POSITION THAT, UNDER THE ANALYSIS REQUIRED IN

DESCAMP, IN THAT CASE THEY WERE LOOKING AT BURGLARY. AND THEY

FOUND THAT THAT PARTICULAR STATUTE, WHAT YOU DO IS -- AND WE

KIND OF SKIP DOWN. IS IT -- IS IT PUNISHABLE BY MORE THAN A

YEAR? YES. WAS HE AT LEAST 18 YEARS OLD AT THE TIME? SO FOR

THE CAREER OFFENDER CLAUSE, THEN WE GET TO DESCAMP, AND THEN WE

FIND WHAT -- WE ARE INSTRUCTED IN DESCAMP TO FIND WHAT IS THE

GENERIC OFFENSE. AND IN THAT PARTICULAR CASE THEY LOOKED AT THE

LEFAVE (PHONETIC) AND SCOTT, BUT THE OTHER DECISIONS HAVE LOOKED

AT THE FEDERAL STATUTE CASE LAW OR COMMON LAW ELEVENTH CIRCUIT

PRECEDENT. AND THE STATUTE THAT I USED WAS THE FEDERAL STATUTE,

SECTION 111. AND THEN WHAT YOU DO IS DETERMINE WHETHER THE

STATUTE IS DIVISIBLE OR INDIVISIBLE. IF IT IS DIVISIBLE AND

THAT IT CAN BE DONE IN MORE THAN ONE WAY, THEN YOU SEE -- YOU

CAN GO TO WHAT'S CALLED THE MODIFIED CATEGORICAL APPROACH. IF

IT IS INDIVISIBLE, AND OUR POSITION IS THAT IT IS INDIVISIBLE

BECAUSE IT ONLY CAN BE DONE -- THERE'S ONE SET OF ELEMENTS THAT

HAS DIFFERENT MEANS OF COMMITTING THE OFFENSE, BUT THEY'RE ALL

THE SAME WHEN THEY'RE SUBMITTED TO THE JURY. THE JURY DOES NOT

HAVE TO FIND DIFFERENT -~- WHETHER HE WAS OFFERED, DOING, OR

THREATENING TO DO VIOLENCE. THOSE ARE JUST DIFFERENT MEANS OF

THE SAME ELEMENT, AND THE JURY WOULDN'T HAVE TO FIND THE

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

ALTERNATIVE. THEY WOULD JUST HAVE TO FIND ONE OF THOSE. SO OUR

POSITION THAT IT IS INDIVISIBLE, THEREFORE, WHICH SHOULD BE A

CATEGORICAL APPROACH. AND UNDER THE CATEGORICAL APPROACH, WHAT

YOU DO IS ANALYZE THE STATUTE, CAN SEE IF IT IS BROADER THAN THE

GENERIC DEFINITION. IF IT IS BROADER AND IT ENCOMPASSES THINGS

OUTSIDE THE GENERIC DEFINITION, THEN IT IS NOT A PREDICATE

OFFENSE UNDER THE CATEGORICAL APPROACH. AND WHEN WE LOOK -- THE

CASES THAT I CITED WHICH SPECIFICALLY DEALT WITH THE GEORGIA

OFFENSES INCLUDE THINGS THAT ARE NOT WITHIN THE DEFINITION OF

THE FEDERAL STATUTE AND THAT ALSO ARE NOT SPECIFICALLY VIOLENCE,

IN THAT SPECIFICALLY JACKSON VS. STATE AND ALSO IN REDD --

AGAIN, THESE ARE ALL IN MY SENTENCING MEMORANDUM. IN REDD, THE

COURT FOUND BY ASSUMING A FIGHTING STANCE AND PLACING HIS FISTS

IN FRONT OF HIS FACE AND YELLING OBSCENITIES AT THE OFFICER,

THAT THAT QUALIFIED AS OFFERING TO DO VIOLENCE TO THE OFFICER

WHEN THERE WAS NO ACTUAL CONTACT, JUST THE VERBAL ACTS IN AND OF

THEMSELVES WOULD CONSTITUTE A CRIME OF VIOLENCE AND BECAUSE THAT

WAS BROADER THAN THE FEDERAL STATUTE WHICH ONLY WOULD ENCOMPASS

ACTUAL PHYSICAL CONTACT. AND ACCORDING TO THE EARLIER JOHNSON

DECISION, THAT IS 559 U.S. 133, THE SUPREME COURT HELD THAT

PHYSICAL FORCE MEANS A VIOLENT FORCE THAT IS FORCE CAPABLE OF

CAUSING PHYSICAL PAIN OR INJURY TO ANOTHER PERSON.

AND BECAUSE OF THE GEORGIA CASES THAT INTERPRET THAT

STATUTE THAT INCLUDE TAKING A FIGHTING STANCE AND VERBAL ACTS

AND THE OTHER CASES THAT I CITED TO, THAT IT DOESN'T REQUIRE

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

ACTUAL PHYSICAL CONTACT OR FORCE THAT WAS MEANT TO CAUSE

PHYSICAL PAIN OR INJURY TO ANOTHER PERSON.

THE COURT: BUT HOW ABOUT THE PART IN THE 4B1.2Al1

WHERE IT TALKS ABOUT, "OR THREATENED USE OF PHYSICAL FORCE?"

AND WHEN I READ THE WORDS OF THAT ENHANCEMENT AND I SEE THAT

THREATENED PIECE IN THERE, IT WOULD SEEM TO ME THAT EVEN THESE

KIND OF LESSER CONVICTIONS FOR FELONY OBSTRUCTION WOULD HAVE

THIS THREATENED USE OF PHYSICAL FORCE COMPONENT WITHIN THEM.

MR. COGNAC: RIGHT. BUT UNDER THE JOHNSON DECISION,

THE ONE I JUST CITED TO, THAT THEY -- THOSE WOULDN'T QUALIFY

BECAUSE IT REQUIRES A PHYSICAL FORCE, MEANS A VIOLENT FORCE THAT

IS FORCE CAPABLE OF CAUSING PHYSICAL PAIN OR INJURY TO ANOTHER

PERSON.

SO THE THREATENED PART OF IT WOULDN'T -- UNDER THE JOHNSON

DECISION WOULDN'T QUALIFY. SO WHEN WE GO THROUGH THE ANALYSIS,

WHEN WE GO THROUGH THE FLOW CHART, WHAT WE DETERMINE BY LOOKING

AT THE CASE LAW, LOOKING AT THE FEDERAL STATUTE, IS THAT IT'S

ONE INDIVIDUAL -- INDIVISIBLE TERMS, ELEMENTS, THEREFORE, WE

HAVE TO GO BY A CATEGORICAL APPROACH. WE DON'T LOOK AT THE

DOCUMENTS THAT ARE APPROVED BY SHEPARD. WE DON'T LOOK AT THE

CONVICTION. WE DON'T LOOK AT THE INDICTMENT. WE JUST LOOK AT

THE STATUTE. AND BECAUSE THE STATUTE THROUGH CASE LAW

INCLUDES THINGS THAT WOULD NOT BE INCLUDED WITHIN THE FEDERAL

DEFINITION THAT IT'S OVERLY BROAD, AND, THEREFORE, IT IS NOT A

PREDICATE OFFENSE UNDER THE CATEGORICAL APPROACH.

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

THE COURT: WELL, ABOUT THE BROWN CASE, HOW DO WE GET

AROUND THERE BEING 2015 ELEVENTH CIRCUIT PRECEDENT THAT SAYS THE

OPPOSITE GIVEN THAT THE DESCAMP DECISION WAS A COUPLE YEARS

PRIOR TO THAT?

MR. COGNAC: WE GET AROUND THAT BECAUSE WHEN YOU LOOK

AT THE BROWN DECISION, THEY DON'T GO THROUGH THAT ANALYSIS.

THEY DON'T DETERMINE WHAT THE GENERIC DEFINITION IS. THEY DON'T

GO THROUGH THE ANALYSIS THAT'S REQUIRED BY DESCAMP. THEY SIMPLY

CITE TO EARLIER DECISIONS BEFORE DESCAMP AND RELY ON THOSE

EARLIER DECISIONS THAT DEFINED IT AS A CRIME OF VIOLENCE WITHOUT

GOING THROUGH THE ANALYSIS THAT'S REQUIRED IN DESCAMP.

THE COURT: DO WE KNOW ANYTHING ABOUT WHAT ARGUMENTS

WERE MADE IN THAT CASE AND WHETHER OR NOT DESCAMP WAS BROUGHT UP

IN ANY WAY IN THE BROWN CASE?

MR. COGNAC: IT WAS. I MEAN, IN THE BRIEF -- IT IS

BRIEFED, BUT IT IS NOT ADDRESSED IN THE DECISION.

THE COURT: RIGHT. IN THE DECISION IT'S NOT, BUT DO

YOU KNOW IF THAT WAS SOMETHING BEFORE THE COURT THAT THEY

CONSIDERED IN ANY WAY FROM THE BRIEFING OR FROM THE COURT BELOW?

MR. COGNAC: I KNOW THAT IT WAS IN THE BRIEFS, BUT I

DON'T -- I DON'T EVEN KNOW IF THEY HAD ORAL ARGUMENT, BUT I KNOW

THAT IT WAS ADDRESSED IN THE BRIEFS.

THE COURT: OKAY. OKAY. MS. BOATRIGHT.

MS. BOATRIGHT: THANK YOU, YOUR HONOR. JUST BRIEFLY,

THE -- AS THE COURT HAS RECOGNIZED, THE ELEVENTH CIRCUIT HAS

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

ALREADY -- HAS SPOKEN TO THIS QUESTION. AND EFFECTIVELY WHAT

DEFENSE COUNSEL IS ASKING RIGHT NOW IS FOR THIS COURT TO SAY

THAT THE ELEVENTH CIRCUIT GOT IT WRONG WITH BROWN. AND HERE'S

WHY. BECAUSE THE ELEVENTH CIRCUIT IN THE BROWN CASE IN 2015,

WHICH WAS DECIDED AFTER THE DESCAMP CASE, WE KNOW THAT THE

DESCAMP CASE WAS PART OF THE BRIEFING. AND WE ALSO KNOW THAT

THE ELEVENTH CIRCUIT CONSISTENTLY APPLIES THE DEFINITION OF

CRIME OF VIOLENCE FROM THE ARMED CAREER CRIMINAL ACT TO THE

CAREER OFFENDER GUIDELINE. SO WHEN YOU KIND OF LINK EACH OF

THOSE SORT OF IMPOSSIBLE-TO-IGNORE REALITIES TOGETHER, WE HAVE

THE ELEVENTH CIRCUIT CONCLUSIVELY DETERMINING THAT GEORGIA'S

FELONY OBSTRUCTION STATUTE, THIS STATUTE, IS CATEGORICALLY A

CRIME OF VIOLENCE UNDER THE ARMED CAREER CRIMINAL ACT EVEN IN

LIGHT OF DESCAMP, EVEN UNDER AND IN LIGHT OF THE SUPREME COURT

GUIDANCE IN DESCAMP, IF I'M PRONOUNCING THAT CORRECTLY, PLUS THE

FACT THAT THE ELEVENTH CIRCUIT CONSISTENTLY, THROUGH BINDING

PRECEDENT, APPLIES THE SAME DEFINITION IN THE ARMED CAREER

CRIMINAL ACT TO THE CAREER OFFENDER GUIDELINE. WHEN WE TAKE

THOSE TWO FACTS, WE HAVE BINDING ELEVENTH CIRCUIT PRECEDENT HERE

FOR THIS COURT TO APPLY. AND IT MAY VERY WELL BE THE CASE

THAT -- THAT THE -- WELL, LET ME -- THAT IS -- THAT IS SIMPLY

WHERE WE'RE AT. IN ADDITION TO THE COURT'S FURTHER POINT, THE

GUIDELINE ITSELF, THE CAREER GUIDELINE ITSELF CONTEMPLATES THAT

A CRIME OF VIOLENCE UNDER THE CAREER OFFENDER GUIDELINE CAN

CONSIST OF SOMETHING OTHER THAN THE ACTUAL USE OF FORCE, TO THE

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

COURT'S POINT. THE GUIDELINE SPECIFICALLY SAYS, OR THREATENED

USE OF PHYSICAL FORCE. THAT MAPS ALMOST EXACTLY UNDER THE

GEORGIA FELONY OBSTRUCTION STATUTE WHICH SAYS THAT OBSTRUCTION

CAN BE COMMITTED BY OFFERING OR BY ACTUALLY -- HERE. LET ME

QUOTE IT EXACTLY TO THE COURT. BY OFFERING OR DOING VIOLENCE TO

THE PERSON OF A LAW ENFORCEMENT OFFICER. SO WE HAVE THE

ATTEMPTED THREATS, ACT, OR BEGINNING OF THREATS AND WE ALSO

ACTUALLY HAVE ACTS OF THREATS -- ACT OF VIOLENCE. EXCUSE ME.

SO FOR ALL OF THOSE REASONS THE GOVERNMENT URGES THIS COURT TO

GO AHEAD AND APPLY WHAT'S BINDING PRECEDENT IN THE ELEVENTH

CIRCUIT HERE.

THE COURT: OKAY. THANK YOU VERY MUCH.

MS. BOATRIGHT: THANK YOU.

THE COURT: NOW, IN TERMS OF THIS FIRST ISSUE WHETHER

OR NOT FELONY OBSTRUCTION OF A LAW ENFORCEMENT OFFICER DOES

QUALIFY AS A CRIME OF VIOLENCE AS DEFINED BY THE GUIDELINES, I

AM GOING TO OVERRULE THAT OBJECTION AND BASED UPON, FIRST, U.S.

VS. BROWN. AS COUNSEL FOR THE GOVERNMENT HAS STATED, THIS WAS

AN ELEVENTH CIRCUIT CASE IN 2015 THAT IS ON POINT. YES, IT WAS

DEALING WITH THE A.C.C.A., BUT I DO THINK THAT IT IS PROPERLY

LINKED UP UNDER ELEVENTH CIRCUIT PRECEDENT. JI DO UNDERSTAND THE

ARGUMENT AND I DO -- I DO UNDERSTAND ALSO THAT A BODY OF LAW

THAT REQUIRES A FLOW CHART SUCH AS THIS TO APPLY, I MEAN, DOES

SPEAK TO SOME VERY PROBLEMATIC APPLICATION ISSUES IN THIS WHOLE

BODY OF LAW RIGHT NOW. AND I THINK IT'S AN ISSUE WHERE THERE

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

ARE A LOT OF GOOD ARGUMENTS OUT THERE UNDER THESE NEW SUPREME

COURT CASES, AND THIS TRULY IS AN EVOLVING AREA OF THE LAW THAT

I THINK EVEN IN THE NEXT YEAR OR TWO WE'RE GOING TO SEE SOME

DECISIONS COMING OUT OF THE SUPREME COURT THAT ARE GOING TO GO

DIFFERENT WAYS MAYBE THAN THE ELEVENTH CIRCUIT ON THIS. BUT

UNTIL THESE ISSUES ARE MORE CLARIFIED BY THE ELEVENTH CIRCUIT,

WHAT AS A DISTRICT COURT THAT I'M DOING IS GOING TO APPLY THE

PRECEDENT THAT I HAVE IN FRONT OF ME. AND EVEN THOUGH THE

ELEVENTH CIRCUIT DID NOT ANALYZE DESCAMP OR DESCAMP, OR HOWEVER

YOU PRONOUNCE IT, IN A WAY THAT I THINK WOULD HAVE BEEN HELPFUL

FOR US TO KNOW EXACTLY WHAT THEIR REASONING IS, THE ISSUES WERE

BEFORE THE COURT. FOR WHATEVER REASON THEY DID NOT FIND THEM

PERSUASIVE TO CHANGE THEIR MIND ABOUT THIS ISSUE. SO BECAUSE IT

IS BINDING PRECEDENT ON ME, I AM GOING TO APPLY IT. AND IT

REALLY IS VERY CLOSE ON POINT TO WHAT WE HAVE HERE. IT'S

CERTAINLY, LIKE I SAID, AN EVOLVING AREA OF THE LAW. AND IT MAY

BE THAT FUTURE SUPREME COURT CASES DO CHANGE THAT. AND IT'S

SOMETHING THAT I'M HOPEFUL, AS THE CASE LAW DEVELOPS, THAT THERE

WILL BE A LITTLE BIT MORE CLARITY ON EXACTLY HOW ALL THESE CASES

ARE GOING TO BE READ TOGETHER. BUT GIVEN WHAT I HAVE TODAY,

WHICH IS THIS BINDING U.S. VS. BROWN DECISION, I AM GOING TO

OVERRULE THAT OBJECTION, AND I DO FIND THAT THE FELONY

OBSTRUCTION OF A LAW ENFORCEMENT DOES QUALIFY AS A CRIME OF

VIOLENCE UNDER THE GUIDELINE.

SO, MR. COGNAC, DO YOU HAVE ADDITIONAL OBJECTIONS TO THE

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

P.S.R. THAT YOU WANTED TO RAISE?

MR. COGNAC: YOUR HONOR, THE ONLY OTHER OBJECTION

DEALT WITH THE SHEPARD DECISION AND WHAT DOCUMENT YOU COULD LOOK

FOR IF YOU DECIDED IT WAS MODIFIED CATEGORICAL APPROACH. BUT

SINCE YOU'VE ALREADY MADE THAT RULING, I WAS REALLY JUST

OBJECTING TO THE POLICE REPORT BEING INCLUDED IN THE P.S.R. AND

WHETHER THAT COULD BE USED TO DETERMINE IT WOULDN'T QUALIFY

UNDER THE SHEPARD DOCUMENTS. BUT BECAUSE YOU'VE ALREADY MADE

THAT RULING, IT DOESN'T REALLY IMPACT WHERE WE'RE AT AT THIS

POINT.

THE COURT: OKAY. THANK YOU.

MS. BOATRIGHT, DID YOU HAVE ANY OBJECTIONS TO THE

PRESENTENCE REPORT?

MS. BOATRIGHT: NONE, YOUR HONOR.

THE COURT: OKAY. SO SUBJECT TO THE RULING I JUST

MADE, I DO ADOPT THE FINDINGS OF FACT AND CONCLUSIONS OF LAW IN

THE PRESENTENCE REPORT, WHICH MEANS THE SENTENCING OPTIONS UNDER

THE GUIDELINES ARE AS FOLLOWS: A STATUTORY PENALTY OF NOT MORE

THAN 20 YEARS IMPRISONMENT, A ONE-MILLION-DOLLAR FINE. THERE IS

NO MANDATORY MINIMUM, A TOTAL OFFENSE LEVEL OF 29, A CRIMINAL

HISTORY CATEGORY OF SIX, A CUSTODY GUIDELINE RANGE OF 151 TO 188

MONTHS, A FINE GUIDELINE RANGE OF 30,000 TO ONE MILLION.

RESTITUTION IS NOT APPLICABLE. THERE IS A SPECIAL ASSESSMENT OF

A HUNDRED DOLLARS. FORFEITURE IS NOT APPLICABLE. THERE IS A

COST OF CONFINEMENT OF $30,621 ANNUALLY, A COST OF SUPERVISION

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

OF $3,909 ANNUALLY. THERE'S NO PROBATION OPTION. IN TERMS OF

SUPERVISED RELEASE, IT IS TWO TO FIVE YEARS. AND AS TO

IMMIGRATION RELATED ISSUES, MR. BURNS IS A U.S. CITIZEN, SO WE

DO NOT HAVE ANY IMMIGRATION RELATED ISSUES TO CONSIDER.

SO, FIRST, I WANT TO KNOW IF COUNSEL HAS ANY OBJECTIONS TO

THE CALCULATION OF THE GUIDELINES OTHER THAN THE ONE THAT YOU

HAVE JUST MADE, MR. COGNAC? ANYTHING ABOUT WHAT I'VE STATED AS

NOT BEING THE PROPER GUIDELINES?

MR. COGNAC: NOTHING OTHER THAN WAS PREVIOUSLY STATED,

YOUR HONOR.

MS. BOATRIGHT: NONE FROM THE GOVERNMENT, YOUR HONOR.

THE COURT: OKAY. AND BEFORE I HEAR FROM COUNSEL ON

THEIR SENTENCING RECOMMENDATIONS, I DO WANT TO JUST MENTION ON

THE RECORD THAT I DID RECEIVE THE SENTENCING MEMORANDUM FROM

EACH PARTY THAT TALKED ABOUT THE OBJECTION WE JUST DEALT WITH A

MOMENT AGO, BUT ALSO CONTAINED ADDITIONAL INFORMATION ABOUT

SENTENCING RECOMMENDATIONS. AND I HAVE READ BOTH OF THOSE

DOCUMENTS, AND THAT WILL BE PART OF WHAT I'VE REVIEWED TO BASE

MY DECISION ON TODAY. BUT I SAY THAT NOT TO SHORTEN YOUR

PRESENTATION, BUT JUST SO THAT YOU KNOW THAT I HAVE READ THAT

INFORMATION. SO AT THIS TIME I'M GOING TO HEAR FROM

MS. BOATRIGHT ON BEHALF OF THE GOVERNMENT AS TO THEIR

RECOMMENDATION.

MS. BOATRIGHT: THANK YOU, YOUR HONOR. ACTUALLY ONE

MOMENT. AS THE COURT KNOWS, THE GOVERNMENT IS RECOMMENDING A

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

DOWNWARD VARIANCE IN THIS CASE FROM THE GUIDELINE SENTENCE THAT

THE COURT HAS CALCULATED -- EXCUSE ME -- THE GUIDELINE RANGE

THAT THE COURT HAS CALCULATED. THERE ARE A NUMBER OF REASONS

FOR THAT, MOST SIGNIFICANTLY MR. BURNS IS A DEFENDANT WHO IS

HERE BEFORE THIS COURT AS A RESULT OF A LARGER INITIATIVE THAT'S

BEEN ONGOING IN A PARTICULAR AREA OF THE CITY FOR OVER A YEAR

NOW. AND THE GOVERNMENT HAS TAKEN AND ATTEMPTED TO TAKE

CONSISTENT POSITIONS WITH RESPECT TO DEFENDANTS WHO HAVE COME

BEFORE THE NORTHERN DISTRICT OF GEORGIA MORE BROADLY, NOT JUST

IN FRONT OF YOUR HONOR.

AS PART OF THAT, THE GOVERNMENT RECOGNIZES THAT THE AMOUNT

OF DRUGS AT ISSUE IN THE INSTANT OFFENSE IS SMALL COMPARED TO

THE AMOUNT OF DRUGS THAT COULD BE AT ISSUE. MR. BURNS IS HERE

AS A RESULT OF A SINGLE DRUG TRAFFICKING INSTANCE, OF A SINGLE

INSTANCE OF DRUG TRAFFICKING. THAT SAID, THE GOVERNMENT HAS

RECOMMENDED A SENTENCE OF 96 MONTHS. THAT IS A 55-MONTH

DOWNWARD VARIANCE FROM THE LOW END OF THE GUIDELINES AS

CALCULATED. THE REASON WHY THE 96-MONTH RECOMMENDATION IS JUST

AND REASONABLE UNDER THE 3553(A) FACTORS IS NOT JUST BECAUSE OF

THIS -- THAT THE GOVERNMENT IS SEEKING TO HAVE SOMEWHAT

CONSISTENT SENTENCES APPLIED IN THE CONTEXT OF THIS LARGER

INITIATIVE, BUT ALSO BECAUSE MR. BURNS' CRIMINAL HISTORY IS --

IS ACTUALLY ENTITLED -- HE IS A PERFECT EXAMPLE OF WHAT CAREER

OFFENDER MEANS. HE -- HIS UNDERLYING CONVICTIONS THAT QUALIFY

HIM FOR THE HIGH GUIDELINE SENTENCE ARE PRETTY ATROCIOUS ACTS OF

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

VIOLENCE. THE AGGRAVATED ASSAULT FROM EARLY 2000, THAT'S

CLASSIC, BREAKING INTO SOMEONE'S HOUSE AND SHOOTING AT A PERSON.

AND AS THE COURT IS WELL AWARE HAVING ADOPTED THE FINDINGS OF

FACT IN THE P.S.R., THE FELONY OBSTRUCTION OF LAW ENFORCEMENT

OFFICERS IN THIS CASE WERE NOT MINIMAL ACTS OF CONDUCT. AND THE

COURT HAS EVIDENCE THAT MR. BURNS KNOWING, FOR EXAMPLE, THAT HE

WAS H.I.V. POSITIVE WAS DELIBERATELY BITING AND SCRATCHING AND

TRYING TO INFECT THE POLICE OFFICERS WHO WERE -- WHO WERE

ATTEMPTING TO EFFECTUATE AN ARREST. SO THIS PUTS MR. BURNS

SQUARELY WITHIN WHAT THE CAREER OFFENDER GUIDELINES WERE

INTENDED (VERBATIM) TO ADDRESS. THAT SAID, THE GOVERNMENT

RECOGNIZES THAT MR. BURNS' CONDUCT IN THE INSTANT OFFENSE, AS

WELL AS HOW HE'S COME BEFORE THIS COURT IN THE FIRST PLACE,

ENTITLES -- THE GOVERNMENT BELIEVES THAT A DOWNWARD VARIANCE OF

SOME KIND IS JUSTIFIED. BUT 96 MONTHS IS APPROPRIATE FOR ALL

THE REASONS THAT I'VE JUST SAID.

THE COURT: OKAY. THANK YOU VERY MUCH.

MS. BOATRIGHT: THANK YOU.

THE COURT: MR. COGNAC. AND IT'S MY UNDERSTANDING AS

WELL THAT YOU HAVE MAYBE SOMEBODY OR SOME PEOPLE THAT WANT TO

SPEAK. AND WHAT I'LL LET YOU DO, TOO, IS MAKE YOUR

PRESENTATION, BUT AT ANY POINT YOU WANT TO CALL ANYBODY, JUST GO

AHEAD AND DO THAT. AND I'LL HEAR FROM THEM AT WHAT POINT IN

TIME IN YOUR PRESENTATION YOU WOULD LIKE THEM TO SPEAK.

MR. COGNAC: OKAY. IN ADDRESSING THE 3553(A) FACTORS,

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

THE COURT IS AWARE THAT THE ADVISORY GUIDELINES, THEY'RE NOT

MANDATORY ON THE COURT AND THEY ARE NOT PRESUMED REASONABLE.

AND REALLY WHAT MAKES THIS CASE AND TAKES IT OUT OF THE

HEARTLAND OF THE TYPICAL DRUG OFFENSE IS THE AMOUNT INVOLVED.

WE'RE TALKING ABOUT LESS THAN A QUARTER OF A GRAM. THE

POLICE -- ACTUALLY THE CRIME LAB REPORT SAYS LESS THAN A GRAM.

THE POLICE REPORT HAD TWO WEIGHTS, .23 AND .20, SO WE'RE TALKING

EITHER A FIFTH OF A GRAM, MAYBE A QUARTER OF A GRAM. THIS IS

THE WEIGHT OF A COUPLE OF GRAINS OF SAND ON ONE OCCASION, THE

SALE OF THAT ON ONE OCCASION. IN FEDERAL COURT WE ARE TYPICALLY

DEALING WITH MULTIPLE KILOS, HUNDREDS OF THOUSANDS IF NOT

MILLIONS OF DOLLARS WORTH OF DRUGS. IT IS VERY UNLIKELY THAT

THIS IS THE HEARTLAND CASE THAT WE SEE IN THIS DISTRICT.

NOW, THE GOVERNMENT HAS THIS INITIATIVE THAT THEY'RE TRYING

TO CLEAN UP THE VINE CITY AREA COMMONLY KNOWN AS THE BLUFF.

THIS IS NOT THE FIRST TIME THE GOVERNMENT HAS HAD THIS

INITIATIVE. IT WAS DONE IN THE EARLY 2000'S, IT WAS DONE IN THE

LATE 1990'S WHERE THEY GO INTO THIS OPEN-AIR DRUG MARKET AND

THEY MAKE THESE SWEEPS AND THEY PROSECUTE THESE OFFENSES THAT

TYPICALLY WOULD NOT BE PROSECUTED IN FEDERAL COURT BECAUSE THEY

ARE TRYING TO CLEAN UP A SPECIFIC AREA. AND ACTUALLY BECAUSE

IT'S CLOSE TO THE STADIUM AND THE NEW STADIUM, THEY'RE TRYING TO

DO SOMETHING ABOUT THE OPEN-AIR DRUG MARKET THAT IS WITHIN FEET

OF THE STADIUM. SO WHEN WE'RE DEALING WITH SUCH A MINUSCULE

AMOUNT -- AS A MATTER OF FACT, WHEN CALCULATING THE GUIDELINES,

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

THE MINIMUM AMOUNT THAT THEY CONSIDER IS TEN GRAMS, AND THAT

GETS YOU 12, A LEVEL 12. WE'RE DEALING WITH SOMEWHERE BETWEEN A

40TH AND A 50TH OF AMOUNT TO TRIGGER THAT LEVEL 12. AND UNDER

THE GUIDELINES HAD HE NOT BEEN A CAREER OFFENDER, HE WOULD HAVE

BEEN LOOKING AT 21 TO 27 MONTHS. WHEN YOU TAKE THAT INTO

ACCOUNT AND THEN YOU LOOK AT THE OTHER INFORMATION THAT'S

PRESIDED (VERBATIM) IN THE PRESENTENCE REPORT, THE FACT THAT HE

DOES HAVE A DRUG DEPENDENCY, THAT HE'S DOING THIS IN ORDER TO

FEED HIS OWN DRUG DEPENDENCY, AND THIS IS, YOU KNOW, A ONE-TIME

SALE OF ONE-FORTIETH TO ONE-FIFTIETH OF THE AMOUNT TO REQUIRE

THE LOWEST POSSIBLE LEVEL IN THE FEDERAL SYSTEM, IT IS TRULY

OUTSIDE THE HEARTLAND OF CASES THAT WE TYPICALLY SEE. AND

THAT'S WHY WE'RE ASKING FOR A SENTENCE THAT WOULD BE THE SAME AS

IF HE WERE NOT A CAREER OFFENDER. BECAUSE OF OUR ARGUMENTS THAT

WE MADE -- AND WE UNDERSTAND YOUR RULING THAT YOU HAVE FOUND

HE'S A CAREER OFFENDER UNDER THE GUIDELINES -- BUT A REASONABLE

SENTENCE, GIVEN ALL OF THE FACTORS UNDER 3553(A), GIVEN THE

AMOUNT, THE ONE TIME THAT WE'RE TALKING ABOUT HERE -- AND, YES,

HE HAS A CRIMINAL HISTORY. THERE'S NO DOUBT ABOUT THAT, BUT HE

HAS SERVED THE APPROPRIATE TIME THAT HE WAS SENTENCED TO. HE'S

BEEN PUNISHED FOR THOSE CRIMES. TO NOW TAKE A CRIME THAT WOULD

HAVE BEEN 21 TO 27 MONTHS AND MAKE IT 151 TO 188, OR EVEN THE

GOVERNMENT'S RECOMMENDATION OF 96 MONTHS, IS, FRANKLY, AN

INJUSTICE. IT'S JUST NOT RIGHT. IT'S NOT FAIR. IT'S NOT

REASONABLE. AND WE WOULD ASK THAT A SENTENCE TYPICAL OF WHAT HE

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WOULD BE AT NOT BEING A CAREER OFFENDER, BECAUSE OF THE ISSUE OF

THE TINY AMOUNT AND THE DEBATABLE ISSUE OF WHETHER HE'S CAREER

OFFENDER OR NOT, WE THINK IF YOU TAKE ALL THAT IN CONSIDERATION,

A SENTENCE IN THE RANGE OF 15 TO 18 MONTHS WOULD BE APPROPRIATE.

AND WE WOULD ASK FOR DRUG TREATMENT PROGRAM, THE MOST INTENSIVE

DRUG TREATMENT PROGRAM THAT THE COURT COULD PRESCRIBE, AND THAT

HE BE SENTENCED TO A FACILITY AS CLOSE TO ATLANTA AS POSSIBLE.

HE DOES HAVE A FRIEND HERE. HER NAME IS ELEANORA

BURNS. SHE WOULD LIKE TO SPEAK ON HIS BEHALF.

THE COURT: OKAY. MS. BURNS, IF YOU CAN COME UP TO

THE PODIUM AND JUST SAY AND SPELL YOUR NAME BEFORE YOU START

TALKING SO WE MAKE SURE WE GET IT CORRECT IN THE RECORD, PLEASE.

MS. BARNES-RAMEY: OKAY. MY NAME IS ELEANOR

BARNES-RAMEY. THANK YOU FOR ALLOWING ME TO COME UP. I'M KIND

OF NERVOUS. I LEFT A PACKAGE BACK THERE, BUT HE SENT ME THE

PACKAGE. AND I'M A VERY GOOD FRIEND OF HIS. AND WHEN I READ

THE PACKAGE, YOUR HONOR, IT WAS ALMOST LIKE I HAD FORMED THIS

OPINION AND SAID, NO, I DON'T THINK I WANT TO BE BOTHERED, YOU

KNOW WHAT I MEAN. SO WHEN I TALK TO EACH AND EVERY ONE OF HIS

FAMILY MEMBERS AND SOMEBODY THAT CARES ABOUT HIM, THEY SAY THAT

THIS MAN WENT OUT IN THE THIRD GRADE TO STEAL FOOD TO FEED HIS

SIBLINGS. AND SO THAT'S WHEN I EXPLAINED TO HIM WHAT ME AND MY

BROTHER WENT THROUGH, BUT WE HAD A GRANDMOTHER AND WE HAD A

SUPPORTIVE GRANDFATHER THAT CAME AND TOOK US AWAY FROM OUR

MOTHER SO THAT WE WOULDN'T BE EXPOSED TO THE STUFF THAT HE'S

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BEEN THROUGH.

I'M ASKING YOU, YOUR HONOR, TO BE LENIENT WITH HIM. I WILL

BE THERE TO SUPPORT HIM IN WAYS OF WHERE HE CAN HAVE A LIFE FOR

HIMSELF, NOT ONLY HAVE A LIFE FOR HIMSELF, BE A PRODUCTIVE

CITIZEN. BECAUSE LACK OF EDUCATION IS NUMBER ONE. AND, NUMBER

TWO, YOU LOOKING FOR LOVE FROM PEOPLE, AND YOU GOT TO LEARN TO

LOVE YOURSELF FIRST. AND I EXPLAINED TO HIM IF HE'S WILLING TO

WALK IN THE LIGHT WITH ME, I'M GLAD TO WALK WITH HIM. BUT IF

HE'S GOING TO BE IN THE DARK, THEN I CAN'T HELP HIM WITH

ANYTHING. AND I DO AGREE WITH THE ATTORNEY, COUNSELING,

EDUCATION IS VERY IMPORTANT FOR HIM BECAUSE HE DON'T HAVE THE

FAMILY STRUCTURE. AND IT'S SAD, BUT WHEN I WENT DOWN -- WHEN I

DRIVE DOWN THE STREET -- I'M A C.N.A. AND I TAKE CARE OF PEOPLE

EVERY DAY. AND MY FOCUS IS MY FAMILY, MY IMMEDIATE FAMILY, MY

CHILDREN, AND MY PATIENTS. IF NEITHER ONE OF THEM CALLS ME FOR

ANYTHING, I DON'T MOVE FOR ANYBODY. AND THIS IS WHAT I

EXPLAINED TO HIM, IS TO PLEASE TAKE CARE OF YOURSELF. EDUCATION

FIRST. BECAUSE, YOU KNOW, YOU CAN'T CONTINUE TO LIVE DOING THIS

TYPE OF STUFF TO PEOPLE AND MESSING YOUR LIFE UP ALSO IN RETURN.

THE COURT: THANK YOU.

MS. BARNES-RAMEY: SO I'M ASKING YOU, PLEASE, TO GIVE

HIM A CHANCE BECAUSE HE NEEDS COUNSELING AND HE NEEDS SUPPORT --

THE COURT: THANK YOU VERY MUCH.

MS. BARNES-RAMEY -- SO HE WON'T GET BACK OUT AND DO

THE SAME THING AGAIN. AND I'LL BE THERE FOR HIM IF HE WILL WALK

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IN THE LIGHT. OKAY. THANK YOU.

THE COURT: THANK YOU VERY MUCH.

MR. COGNAC: YOUR HONOR, MR. BURNS WOULD LIKE TO

ADDRESS THE COURT AS WELL.

THE COURT: OKAY. THANK YOU, MR. BURNS. YOU CAN COME

UP HERE.

MR. BURNS: I REALLY NEED COUNSELING, BUT I'M ON --

I'M ON (VERBATIM) DRUGS. THAT'S WHY I WAS OUT THERE IN THE

BLUFF TRYING TO SUBMIT (VERBATIM) MY HABIT. BUT IF YOU GIVE ME

ANOTHER CHANCE, I'M GOING TO STAY AWAY FROM THE BLUFF AND YOU'RE

NOT GOING TO HAVE TO WORRY ABOUT ME NO MORE.

THE COURT: OKAY. THANK YOU VERY MUCH. AND IF Y'ALL

CAN JUST STAY UP AT THE FRONT RIGHT HERE AT THIS PODIUM.

SO, MR. BURNS, WHAT I'M GOING TO DO IS PRONOUNCE THE

SENTENCE AND GO THROUGH ALL THE DETAILS OF THAT, BUT WHEN I'M

THROUGH WITH THAT, I'M GOING TO TALK TO YOU DIRECTLY AND EXPLAIN

TO YOU EXACTLY HOW I CAME TO THIS SENTENCE AND PROVIDE YOU JUST

SOME MORE ACTUAL TALKING TO YOU ABOUT WHAT THIS MEANS. BUT

THERE IS SOME VERY SPECIFIC LANGUAGE THAT I HAVE TO GO THROUGH

IN TERMS OF PRONOUNCING THE SENTENCE.

SO, PURSUANT TO THE SENTENCING REFORM ACT OF 1984, IT IS

THE JUDGMENT OF THE COURT THAT YOU, THE DEFENDANT, JACOBY BURNS,

IS HEREBY COMMITTED TO THE CUSTODY OF THE BUREAU OF PRISONS TO

BE IMPRISONED FOR A TERM OF 84 MONTHS AS TO COUNT ONE. IT IS

FURTHER ORDERED THAT YOU SHALL PAY TO THE UNITED STATES A

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SPECIAL ASSESSMENT OF A HUNDRED DOLLARS WHICH SHALL BE DUE

IMMEDIATELY. I DO FIND THAT YOU DO NOT HAVE THE ABILITY TO PAY

A FINE AND YOUR COST OF INCARCERATION, SO I WILL WAIVE THE FINE

AND COST OF INCARCERATION IN THIS CASE. UPON RELEASE FROM

PRISON, YOU SHALL BE PLACED ON SUPERVISED RELEASE FOR A TERM OF

THREE YEARS. WITHIN 72 HOURS OF RELEASE FROM THE CUSTODY OF THE

BUREAU OF PRISONS, YOU SHALL REPORT IN PERSON TO THE PROBATION

OFFICE IN THE DISTRICT TO WHICH YOU ARE RELEASED. WHILE ON

SUPERVISED RELEASE, YOU SHALL NOT COMMIT ANOTHER FEDERAL, STATE,

OR LOCAL CRIME. YOU SHALL COMPLY WITH THE STANDARD CONDITIONS

THAT HAVE BEEN ADOPTED BY THIS COURT AND YOU SHALL COMPLY WITH

THE FOLLOWING ADDITIONAL CONDITIONS:

PURSUANT TO 42 U.S.C. SECTION 14:135(A) (D) (1) AND 10 U.S.C.

SECTION 1565(D) WHICH REQUIRE MANDATORY D.N.A. TESTING FOR

FEDERAL OFFENDERS CONVICTED OF FELONY OFFENSES, YOU SHALL

COOPERATE IN THE COLLECTION OF D.N.A. AS DIRECTED BY THE

PROBATION OFFICER. YOU SHALL NOT ILLEGALLY POSSESS A CONTROLLED

SUBSTANCE. YOU SHALL PARTICIPATE IN A DRUG AND ALCOHOL, IF

NECESSARY, TREATMENT PROGRAM UNDER THE GUIDANCE AND SUPERVISION

OF THE UNITED STATES PROBATION OFFICER, AND, IF ABLE, CONTRIBUTE

TO THE COST OF SERVICES FOR SUCH TREATMENT. YOU SHALL RECEIVE A

MENTAL HEALTH ASSESSMENT AND FOLLOW ANY RECOMMENDATIONS FOR

TREATMENT UNDER THE GUIDANCE AND SUPERVISION OF THE UNITED

STATES PROBATION OFFICER, AND, IF ABLE, CONTRIBUTE TO THE COST

OF SERVICES FOR SUCH TREATMENT. YOU SHALL NOT OWN, POSSESS, OR

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HAVE UNDER YOUR CONTROL ANY FIREARM, DANGEROUS WEAPON, OR OTHER

DESTRUCTIVE DEVICE. YOU SHALL SUBMIT TO A SEARCH OF YOUR

PERSON, PROPERTY -- REAL, PERSONAL OR RENTAL -- RESIDENCE,

OFFICE AND/OR VEHICLE AT A REASONABLE TIME AND IN A REASONABLE

MANNER BASED UPON A REASONABLE SUSPICION OF CONTRABAND OR

EVIDENCE OF A VIOLATION OF A CONDITION OF RELEASE. FAILURE TO

SUBMIT TO A SEARCH MAY BE GROUNDS FOR REVOCATION. YOU SHALL

WARN ANY OTHER RESIDENTS THAT THE PREMISES MAY BE SUBJECT TO

SEARCHES PURSUANT TO THIS PROVISION, AND YOU MUST PERMIT

CONFISCATION AND/OR DISPOSAL OF ANY MATERIAL CONSIDERED

CONTRABAND OR ANY OTHER ITEM WHICH MAY BE DEEMED TO HAVE

EVIDENTIARY VALUE RELATED TO VIOLATIONS OF SUPERVISION.

AND AS I MENTIONED, I'M GOING TO TALK TO YOU DIRECTLY AND

EXPLAIN TO YOU HOW I GOT TO THIS 84-MONTH SENTENCE. AND IN THE

FEDERAL SYSTEM, AS I KNOW THAT YOU'VE BEEN TOLD BY YOUR LAWYER,

IT'S DIFFERENT HOW WE DO SENTENCING HERE THAN WE DO IN THE STATE

SYSTEM. FIRST, WE LOOK AT THE GUIDELINES. AND AS YOU'RE AWARE,

THE GUIDELINES IN YOUR CASE HAVE YOU AT 151 TO 188 MONTHS WHICH

IS A VERY, VERY SERIOUS SENTENCE. THAT CERTAINLY IS BASED UPON

WHAT YOU DID TO GET HERE, WHICH IS THE SELLING OF THE HEROIN,

BUT A LOT OF THIS HAS TO DO WITH YOUR HISTORY AND WHAT YOU'VE

DONE OVER THE PAST, AND THEN YOU HAVE A RECORD THAT HAS 23

ARRESTS AND 15 CONVICTIONS. AND IT'S FOR ALL SORTS OF DIFFERENT

TYPES OF CRIME, BUT MANY OF THESE ARE VERY SERIOUS. WE HAVE

AGGRAVATED ASSAULT, BURGLARY, AGGRAVATED BATTERY, AND FELONY

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OBSTRUCTION OF LAW ENFORCEMENT WHICH WE'VE TALKED ABOUT BEFORE.

AND THESE ARE CRIMES OF VIOLENCE. THEY'RE VERY SERIOUS CRIMES.

AND WITH EACH CONVICTION THERE HASN'T SEEMED TO BE A DETERRENCE.

THERE HASN'T BEEN SOMETHING THAT HAS STOPPED YOU FROM DOING IT

AGAIN. AND A LOT OF THAT I DO REALIZE IS THE DRUG ADDICTION

THAT YOU'VE BEEN STRUGGLING WITH AND IT HAS SOMETHING TO DO WITH

THE WAY THAT YOU GREW UP AND THE FACT THAT YOUR MOM WAS ADDICTED

TO DRUGS, YOUR DAD WASN'T THERE. AND I HAVE TO SAY IF I COULD

GO BACK WHEN YOU WERE YOUNG AND YOU DIDN'T HAVE ENOUGH FOOD FOR

YOUR SIBLINGS AND YOUR MOM WAS OUT NOT TAKING CARE OF YOU, AND I

COULD FIX THAT PERIOD OF TIME, I MEAN, I WOULD DO THAT. I WOULD

GO BACK THERE AND MAKE SURE YOU WERE CARED FOR AND YOU HAD

ENOUGH TO EAT. AND I'M NOT ABLE TO DO THAT. I'M NOT ABLE TO GO

BACK IN TIME AND FIX THE BAD SITUATION THAT YOU GREW UP IN. AND

THAT'S JUST PART OF WHAT WE HAVE TO DEAL WITH HERE, BUT I HAVE

TO LOOK AT THE SERIOUSNESS OF WHAT YOU'VE DONE IN THESE PAST 37

YEARS. AND THE FACT THAT YOU GREW UP IN BAD CIRCUMSTANCES

DOESN'T EXPLAIN EVERYTHING THAT YOU'VE CHOSEN TO DO YEAR AFTER

YEAR. AND I KNOW YOU'VE BEEN IN DIFFERENT COURTS AND SENTENCED

AT DIFFERENT TIMES, AND, FOR WHATEVER REASON, THAT MOMENT HASN'T

REACHED YOU WHERE YOU'VE REALLY TURNED THINGS AROUND. AND I

KNOW A LOT OF IT HAS TO DO WITH THIS DRUG ADDICTION YOU'VE BEEN

WRESTLING WITH, BUT YOU'RE LEADING A VERY DANGEROUS LIFE.

YOU'RE LEADING A DANGEROUS LIFE FOR OTHERS IN THE COMMUNITY, BUT

YOU'RE LEADING A VERY DANGEROUS LIFE FOR YOURSELF BECAUSE YOU

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ARE PUTTING YOURSELF IN SOME BAD SITUATIONS. AND NO ONE IN THIS

COURTROOM, NONE OF YOUR FRIENDS, NONE OF YOUR FAMILY WANTS TO

SEE YOU GET SHOT, TO GET IN MORE DIFFICULT SITUATIONS. THEY

WANT YOU TO BE HEALTHY. THEY WANT YOU TO BE FEELING GOOD AND

HAVING A GOOD LIFE. AND YOU ARE NOT ON THE PATH WHERE THAT'S

GOING TO HAPPEN. SO I DON'T KNOW IF THIS AMOUNT OF TIME -- I

MEAN, IT'S REALLY A FRACTION OF WHAT YOU COULD BE GETTING EVEN

THOUGH IT'S A VERY SERIOUS SENTENCE, THIS 84 MONTHS, IT'S STILL

67 MONTHS LOWER THAN WHAT THE GUIDELINES SAID I SHOULD GIVE YOU.

BUT I AM CONCERNED ABOUT THE UNDERLYING CRIME, THE VERY SMALL

AMOUNT OF DRUGS THAT WAS INVOLVED. AND I REALLY DO THINK THAT

IF YOU HAVE SOME VERY INTENSIVE DRUG REHABILITATION AND YOU'RE

AWAY FROM THIS LIFESTYLE FOR A PERIOD OF TIME, I SEE NOTHING

ABOUT YOU THAT INDICATES TO ME THAT YOU CAN'T TURN THIS AROUND.

AND AS MS. BARNES SAID, I MEAN, THIS LIFE IS OUT FOR YOU IF YOU

CAN GET THESE DRUGS UNDER CONTROL AND GET YOUR ATTITUDE CHANGED

AROUND AND YOU CAN GET IN THE LIGHT. I MEAN, THERE'S NO REASON

THAT YOU CAN'T TURN THIS AROUND. AND FEDERAL PRISON I'M NOT

GOING TO SAY IS A GOOD PLACE BECAUSE IT'S NOT, BUT I WILL SAY

THAT THE SERVICES THERE ARE A LOT BETTER THAN THE ONES IN THE

STATE SYSTEM. AND THEY ARE SERIOUS ABOUT GIVING YOU DRUG

TREATMENT IF YOU REALLY WANT TO PARTICIPATE AND YOU WANT THIS TO

BE MEANINGFUL. THERE ARE MUCH BETTER PROGRAMS IN THE FEDERAL

SYSTEM THAN THERE ARE IN THE STATE. AND IF THIS IS KIND OF THE

POINT WHERE YOU'RE READY TO DO THIS, THERE ARE PROGRAMS IN PLACE

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THAT CAN HELP YOU. AND WHAT I'M LOOKING FOR IS A SENTENCE THAT

IS ENOUGH TO REALLY RESPECT THE SERIOUSNESS OF WHAT YOU'VE DONE,

WHICH IS SELLING DRUGS, AND THIS KIND OF 23 ARRESTS AND 15

CONVICTIONS, BUT I WANT THERE TO BE HOPE THERE FOR YOU TO TURN

THIS AROUND. AND I HAVE TO SAY IF I SENTENCED YOU TO THIS 151

TO 188 MONTHS, I JUST THINK THAT WOULD BE TOO MUCH. I THINK

THAT IF YOU HAVE THIS DRUG TREATMENT, THAT I THINK SEVEN YEARS

IS MORE THAN ENOUGH TO RESPECT THE SERIOUSNESS OF WHAT YOU DID,

BUT ALSO TO CAPTURE THE HOPE THAT THERE IS IN ALL OF US THAT YOU

CAN FIND THAT POINT WHERE YOU'RE READY NOT TO FEEL LIKE THIS,

NOT TO BE ON THE STREETS, NOT TO BE IN DANGEROUS SITUATIONS, NOT

TO SCARE YOUR FAMILY, AND TO REALLY BE THE MAN THAT YOU ALWAYS

COULD BE. SO THAT'S WHY THIS PARTICULAR SENTENCE, I THINK,

MAKES SENSE.

AS EVERYONE HAS SAID, THIS ISN'T THE TYPICAL CASE WE HAVE

IN FEDERAL COURT. IT IS PART OF A BROADER PROGRAM, BUT IT IS A

SITUATION WHERE WITH DRUG TRAFFICKING EVEN A LOW-LEVEL PERSON IS

NECESSARY FOR THE WHOLE THING TO WORK. AND EVEN THOUGH YOU HAD

A SMALL ROLE, IT'S PART OF SOMETHING THAT IS DESTROYING A

NEIGHBORHOOD AND IT IS DESTROYING A COMMUNITY. BUT I JUST DON'T

THINK YOU'RE SOMEONE THAT HAS TO BE IN JAIL FOR 151 MONTHS TO

GET THIS INTO YOUR HEAD THAT YOU JUST CAN'T DO THIS ANYMORE. I

THINK 84 IS GOING TO BE ENOUGH, BUT I THINK IT'S SERIOUS. IT

DOES SHOW THE IMPORTANCE OF YOU KIND OF UNDERSTANDING WHAT IT IS

THAT YOU'VE DONE.

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

I ALSO SEE THAT YOU DO HAVE SOME STRONG FAMILY SUPPORT. I

KNOW THAT THERE WAS SOME OTHER FOLKS THAT WERE GOING TO BE HERE

TODAY BUT COULDN'T, BUT YOU HAVE A FIANCEE, A MOTHER AND I THINK

IT WAS A SISTER MAYBE THAT ARE IN YOUR LIVES AND THAT CARE FOR

YOU. SO YOU'VE GOT THESE PEOPLE OUT THERE THAT LOVE YOU, THAT

WANT TO BE THERE FOR YOU. AND WHAT I WILL SAY, TOO, WHEN YOU

GET OUT, AND YOU WILL GET OUT, PART OF YOUR SENTENCING IS

SOMETHING CALLED SUPERVISED RELEASE. AND I KNOW RIGHT NOW THAT

DOESN'T MEAN A LOT TO YOU BECAUSE ALL YOU SEE IS THE SEVEN

YEARS, WHICH IS KIND OF THE MORE, I GUESS, BIGGER PART OF THIS,

BUT FOR THREE YEARS AFTER YOU GET OUT, YOU'RE GOING TO HAVE TO

HAVE DRUG TESTS. YOU'RE GOING TO HAVE TO REPORT IN TO YOUR

PROBATION OFFICER, AND YOU'RE GOING TO HAVE TO SHOW YOUR

PROBATION OFFICER THAT YOU'RE ON THIS RIGHT PATH. AND IF YOU

VIOLATE THAT AND YOU HAVE DIRTY DRUG SCREENS, YOU'RE GOING TO

COME BACK TO ME, AND WE'RE GOING TO HAVE TO LOOK AT ANOTHER

SENTENCE FOR YOU. AND WHAT I'LL SAY IS RATHER THAN TREATING THE

SUPERVISED RELEASE AS JUST SOME OTHER HORRIBLE THING YOU HAVE TO

GO THROUGH, I REALLY WANT YOU TO LOOK AT IT AS A STRUCTURE THAT

CAN HELP YOU STAY ON THE RIGHT PATH WHEN YOU GET OUT. BECAUSE

WHEN YOU GET OUT, SOME OF THOSE TEMPTATIONS ARE GOING TO BE

THERE. AND WHAT I HOPE THAT YOU'LL THINK IS, OKAY, IF I GO HANG

WITH THESE PEOPLE AND I GET INTO TROUBLE AGAIN, I'M GOING TO

HAVE TO HAVE THIS DRUG TEST BY MY PROBATION OFFICER, I'M GOING

TO END UP RIGHT WHERE I WAS BEFORE, AND I DON'T WANT TO DO THAT.

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

I MEAN, YOU CAN TELL PEOPLE, I CAN'T DO THIS, I'M GOING TO BE

DRUG TESTED. AND USE THIS TIME WHILE YOU'RE ON SUPERVISED

RELEASE TO HELP YOU GET A JOB, HELP YOU TO GET INTO SOME

PROGRAMS WHEN YOU'RE OUT AND KEEP YOURSELF KIND OF ON THIS RIGHT

PATH BECAUSE IT'S NOT GOING TO BE EASY. BUT IF YOU USE THE

RESOURCES OF THE SUPERVISED RELEASE, IF YOU TALK TO YOUR FAMILY

WHEN YOU'RE HAVING PROBLEMS AND FRIENDS THAT ARE GOOD THAT

AREN'T GETTING YOU IN TROUBLE AND SAY, HEY, I'M HAVING A

PROBLEM, CAN WE GO SOMEWHERE, CAN WE DO SOMETHING, I NEED TO GET

AWAY FROM THESE PEOPLE, TALK TO THE PEOPLE THAT LOVE YOU AND

SUPPORT YOU, AND REALLY DO WHAT YOU CAN TO KEEP ON THE PATH WHEN

YOU GET OUT BECAUSE THAT'S WHAT'S GOING TO MAKE THIS SUCCESSFUL,

IS THE GOOD PROGRAM WHEN YOU GET IN, AND THEN WHEN YOU GET OUT,

REALLY APPRECIATING AND TAKING SERIOUS THESE SUPERVISED RELEASE

RESTRICTIONS THAT YOU'LL HAVE ON YOU WHEN YOU GET OUT AND

THINKING OF THEM AS TOOLS TO HELP YOU STAY ON THE PATH, NOT AS

SOMETHING ELSE TO FIGHT AGAINST. AND THAT WOULD BE WHAT I WOULD

ENCOURAGE YOU TO DO. AND LIKE I SAID BEFORE, THERE WILL BE DRUG

TREATMENT AND THERAPY AND THINGS LIKE THAT AVAILABLE TO YOU

WHILE YOU'RE ON SUPERVISED RELEASE WHEN YOU GET OUT. SO IF

YOU'RE SERIOUS, I MEAN, I'M HOPEFUL THAT THE TOOLS WILL BE THERE

FOR YOU TO REALLY MAKE THIS WORK ONCE YOU GET OUT.

I WAIVE THE FINE BECAUSE OF YOUR INABILITY TO PAY A FINE.

THE SPECIAL ASSESSMENT IS MANDATED UNDER THE STATUTE. THE

THREE-YEAR PERIOD OF SUPERVISED RELEASE AND SPECIAL CONDITIONS

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

WILL ASSIST THE PROBATION OFFICER AND LAW ENFORCEMENT IN

MONITORING YOU FOR COMPLIANCE WITH TREATMENT, RECOMMENDATIONS,

AND THE PARTICIPATION IN FURTHER CRIMINAL ACTIVITY. WHEN I

DEVISED THE SENTENCE I TOOK INTO CONSIDERATION CERTAIN FACTORS

PURSUANT TO 18 U.S.C. SECTION 3553(A), AND THOSE INCLUDED THE

NATURE AND CIRCUMSTANCES OF THE OFFENSE, AND THE HISTORY AND

CHARACTERISTICS OF THE DEFENDANT, THE NEED FOR THE SENTENCE

IMPOSED TO REFLECT THE SERIOUSNESS OF THE OFFENSE, TO AFFORD

ADEQUATE DETERRENCE, TO PROTECT THE PUBLIC, AND TO PROVIDE YOU

WITH TRAINING, CARE, AND/OR TREATMENT, THE KINDS OF SENTENCES

AVAILABLE, THE KINDS OF SENTENCE IN THE SENTENCING RANGE

ESTABLISHED FOR THE OFFENSE AS SET FORTH IN THE GUIDELINES, ALL

PERTINENT POLICIES, AND THE NEED TO AVOID SENTENCE DISPARITY.

THE SENTENCE DOES MEET THE CRITERIA OF PUNISHMENT, DETERRENCE,

AND INCAPACITATION.

YOU HAVE BEEN DETAINED WITHOUT BAIL SINCE YOUR ARREST AND

YOU ARE NOT A CANDIDATE FOR VOLUNTARY SURRENDER BECAUSE OF THE

PROVISIONS FOUND IN 18 U.S.C. SECTION 3143.

I'M NOW GOING TO ASK BOTH COUNSEL IF YOU HAVE ANY

OBJECTIONS TO THE ULTIMATE FINDINGS OF THE COURT, THE GUIDELINE

CALCULATIONS, THE SENTENCE, OR THE MANNER IN WHICH IT HAS BEEN

PRONOUNCED OTHER THAN THOSE THAT HAVE ALREADY BEEN MADE. IF SO,

OBJECTIONS SHOULD BE FULLY MADE AT THIS TIME, OR THEY WILL BE

CONSIDERED AS HAVING BEEN WAIVED.

MS. BOATRIGHT, DO YOU HAVE ANY OBJECTIONS?

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MS. BOATRIGHT: NONE, YOUR HONOR.

THE COURT: MR. COGNAC, DO YOU HAVE ANY OBJECTIONS

OTHER THAN THOSE THAT YOU HAVE ALREADY MADE?

MR. COGNAC: JUST AS ALREADY MADE, BUT I THINK FOR THE

RECORD I HAVE TO STATE IT AGAIN, THAT THE FELONY OBSTRUCTION HAS

THAT BEING A PREDICATE FOR THE CAREER OFFENDER GUIDELINE, AND

THEN TO SUBSTANTIVE REASONABLENESS UNDER 3553(A) WOULD BE OUR

OBJECTIONS, YOUR HONOR.

THE COURT: OKAY. CERTAINLY. AND THOSE WILL BE

NOTED. I WILL PUT IN THE SENTENCING, THE JUDGMENT ITSELF, THE

REQUEST THAT YOUR LAWYER MADE FOR YOU TO RECEIVE THE DRUG

TREATMENT WHILE IN PRISON. AND I ALSO WILL MAKE THE REQUEST

THAT YOU BE SENT TO A FACILITY AS CLOSE AS POSSIBLE TO ATLANTA.

WHAT I WILL TELL YOU IS THAT THE FEDERAL SYSTEM IS DIFFERENT IN

THAT THERE ARE PRISONS ALL OVER THE UNITED STATES. AND WHAT

I'VE BEEN TOLD IS THEY TRY TO PUT YOU AS MUCH AS POSSIBLE CLOSE

TO ATLANTA, BUT THEY CAN'T ALWAYS MAKE THAT WORK BECAUSE OF

WHERE THEY HAVE BEDS AVAILABLE AND THE FACT THEY HAVE FACILITIES

ALL OVER THE COUNTRY. BUT I'M HAPPY TO MAKE THAT

RECOMMENDATION, AND IT WILL BE IN THERE.

AND, MR. BURNS, YOU CAN APPEAL YOUR CONVICTION IF YOU

BELIEVE THAT YOUR GUILTY PLEA WAS SOMEHOW UNLAWFUL OR

INVOLUNTARY OR IF THERE'S SOME OTHER FUNDAMENTAL DEFECT IN THE

PROCEEDINGS. YOU ALSO HAVE A STATUTORY RIGHT TO APPEAL YOUR

SENTENCE UNDER CERTAIN CIRCUMSTANCES, PARTICULARLY IF YOU THINK

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IT IS CONTRARY TO LAW. WITH FEW EXCEPTIONS, ANY NOTICE OF

APPEAL MUST BE FILED WITHIN 14 DAYS OF JUDGMENT BEING ENTERED IN

YOUR CASE. IF YOU ARE UNABLE TO PAY THE COST OF AN APPEAL, YOU

MAY APPLY FOR LEAVE TO APPEAL IN FORMA PAUPERIS. IF YOU SO

REQUEST, THE CLERK OF COURT WILL PREPARE AND FILE A NOTICE OF

APPEAL ON YOUR BEHALF. IN THE EVENT YOU WOULD LIKE TO APPEAL,

YOU HAVE A RIGHT TO A LAWYER TO ADVISE AND REPRESENT YOU. AND,

MR. BURNS, DO YOU HAVE ANY QUESTIONS ABOUT ANYTHING I'VE SAID

TODAY AT THE SENTENCING HEARING?

MR. BURNS: NO, MA'AM.

THE COURT: OKAY. COUNSEL, IS THERE ANYTHING ELSE YOU

WOULD LIKE TO TAKE UP AT THIS TIME?

MS. BOATRIGHT: NOTHING FROM THE GOVERNMENT, YOUR

HONOR.

MR. COGNAC: NO, YOUR HONOR.

THE COURT: OKAY. WELL, THANK YOU ALL.

AND, MR. BURNS, I DO WISH YOU AND YOUR FAMILY THE BEST OF

LUCK. AND, WITH THAT, WE ARE IN RECESS.

(PROCEEDINGS ADJOURNED. )

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.