UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THE UNITED STATES OF AMERICA,

Plaintiff,

v.

ROBERT JOSEPH BURTON, 

Defendant.

 /

Case No. 06-20465

Honorable Nancy G. Edmunds

ORDER AND OPINION DENYING DEFENDANT'S MOTION FOR REDUCTION OF

SENTENCE PURSUANT TO 18 U.S.C. § 3582(c)

This matter comes before the Court on Defendant Robert Joseph Burton's 

("Defendant") motion for reduction of sentence brought pursuant to 18 U.S.C. § 3582(c)

[2853]. Being fully advised in the premises, having read the pleadings, and for the reasons

stated below and in the government's response [2861], Defendant's motion for reduction

of sentence is DENIED.

I. Background

On December 19, 2011, Defendant pleaded guilty to conducting or participating in the

affairs of an interstate enterprise through a pattern of racketeering activity, based on

violations of 18 U.S.C. 1962(d) and 1963(a). (Rule 11 Plea Agreement, Dkt. 2284, at 1;

PgID 16221.) The racketeering activity that Defendant took responsibility for was: (1) the

kidnaping of Ruben Guzman; (2) the attempted murder of Gerald Deese; (3) conspiracy to

transport stolen property in interstate commerce; and (4) conspiracy to distribute cocaine. 

The parties agree that over the seven year time period the amount of cocaine Defendant
personally distributed was between 50-150 kilograms. (Dkt. 2284, at 6; PgID 16226.) 

Defendant's Rule 11 Plea Agreement reflected a sentencing guideline range of 360 months

- life. (Id.) In May 2012, this Court imposed a below guideline sentence, with a term of

imprisonment of 144 months. (Judgment, Dkt. 2388, at 2; PgID 17199.) 

On February 23, 2017 Defendant filed the instant motion to reduce his sentence

relying on Amendment 782 and pursuant to 18 U.S.C. § 3582(c). Effective as of November

1, 2014, Amendment 782 to the U.S. Sentencing Guidelines amended the Drug Quantity

Table at U.S.S.G. § 2D1.1 by reducing the base offense level for most federal drug

trafficking crimes by two levels. In November, 2015, the U.S. Sentencing Commission

made Amendment 782 retroactive. U.S.S.G. § 1B1.10(c). Given that the Court calculated

Defendant's conspiracy to distribute cocaine offense level according to the Drug Quantity

Table prior to Amendment 782's effective date, Defendant believes he is eligible for a

reduced sentence.

II. Applicable Law

18 U.S.C. § 3582(c)(2) establishes a two-step inquiry for evaluating a motion for a

reduced sentence. Dillon v. United States, 560 U.S. 817, 826 (2010). First the Court must

determine whether a reduction is consistent with the U.S.S.G. Id. Second, if the U.S.S.G.

permits a reduction, "§3582(c)(2) instructs a court to consider any applicable § 3553(a)

factors and determine whether, in its discretion, the reduction authorized by reference to

the policies relevant at step one is warranted in whole or in part under the particular

circumstances of the case." Dillon, 560 U.S. at 827. 

III. Analysis

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A reduction is not consistent with the U.S. Sentencing Guidelines, even in light of

Amendment 782. The sentencing guidelines in Defendant's plea agreement recommended

360 months - life. This recommendation was calculated with a base offense level of 44

which is determined when guidelines for each of the four racketeering activities attributable

to Defendant, are combined. Therefore a change in one of the underlying sentencing

guidelines, could change the overall sentencing guideline. 

However in this case the change in the underlying cocaine offense level (from a 40

down to a 38)1 does not change the overall adjusted offense level which, even under

Amendment 782, remains at 44. The highest offense level controls the guideline range. 

Here Defendant received an offense level of 41 for the attempted murder activity. From the

starting point of 41, Defendant was and is assigned three additional "units" reflecting

adjustments for combinations of equally serious crimes. These adjustments are not

impacted by the cocaine offense level being reduced to 38. Therefore, under the new or

old measures, the combined adjusted base offense level of 44 remains the same, and there

is no change in the recommended guideline range of 360 months-life, even under

Amendment 782.

Furthermore, Defendant received a sentence well below the U.S. Sentencing

Guideline range. This Sixth Circuit has found that "[r]ead together, [USSG] § 1B1.10(b)

 1When Defendant was sentenced, the conspiracy to distribute cocaine warranted an

adjusted offense level of 40, for possessing between 50-150 kilograms of cocaine

(according to the old guidelines a level 36 offense) plus an adjustment of 4 additional points

for acting as a leader (according to 3B1.1). Under Amendment 782, the amended

guidelines, require an updated offense level for his conspiracy to distribute cocaine to 38. 

This reflects a level 34 offense for possessing between 50-150 kilograms of cocaine plus

the adjustment of 4 additional point for acting as a leader. 

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and § 3582(c)(2) do not permit a sentence [reduction] below the bottom of the amended

Guidelines range." United States v. Allen, 614 F.3d 253, 257 (6th Cir. 2010) (citing Dillon,

560 U.S. at 826; United States v. Washington, 584 F.3d 693, 701 (6th Cir. 2009)). This

Court lacks the authority to reduce Defendant's sentence, even if it were so inclined, which

it is not. 

SO ORDERED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: April 24, 2018

I hereby certify that a copy of the foregoing document was served upon counsel of record

on April 24, 2018, by electronic and/or ordinary mail.

s/Lisa Bartlett

Case Manager

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