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United States v. Burns

United States District Court, D. Arizona

October 30, 2018

United States of America, Plaintiff/Respondent,
Don Milton Burns, Defendant/Movant.



          Honorable Deborah M. Fine United States Magistrate Judge.

         Don Milton Burns (“Movant”) is an inmate detained at the Phoenix, Arizona Federal Correctional Institution. On October 30, 2017, he filed a Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (hereinafter “Motion”). (Doc. 1)[1] Respondent filed its response (Doc. 8), after which Movant filed a reply (Doc. 14). For the reasons set forth below, the undersigned Magistrate Judge recommends the Court deny the Motion and dismiss it with prejudice.

         I. BACKGROUND

         On December 1, 2015, Movant was indicted on a count of second degree murder pursuant to 18 U.S.C. §§ 1153 and 1111 (CR Doc. 10 at 1). Subsequently, Movant waived prosecution by indictment and consented to proceed under information charging him with a count of Voluntary Manslaughter pursuant to 18 U.S.C. §§ 1153 and 1112. (CR Docs. 35, 36) Movant entered into a plea agreement in connection with a change of plea hearing held by this Court on August 5, 2016. (CR Docs. 39, 51) The plea agreement included a factual basis that Movant admitted to and conceded could be proven by Respondent beyond a reasonable doubt, as follows:

On or about March 26, 2015, on the Salt River Pima-Maricopa Indian Reservation, in the District of Arizona, the defendant and the victim named in the indictment engaged in a verbal argument that escalated into a physical altercation. During the said physical altercation, the victim threatened the defendant's life. The defendant, then in the heat of passion adequately provoked by fear and anger, and with extreme disregard for human life, recklessly assaulted the victim about [the] head and body causing multiple serious injuries, including multiple fractures to the victim's skull and spine, resulting in the victim's death.

(CR Doc. 51 at 6-7)

         Movant was sentenced on November 1, 2016. (CR Doc. 48) Applying an upward departure from the sentencing guideline range, this Court imposed a sentence of 160 months' imprisonment to be followed by a term of 3 years of supervised release. (CR Doc. 54 at 1)


         Movant asserts four grounds of ineffective assistance of counsel (“IAC”). In Ground 1, Movant argues his counsel failed to adequately investigate “the proper charges that should have been brought” in his case, given that he had “acted in self-defense from an attack initiated by the deceased.” (Doc. 1 at 5) Movant contends in Ground 2 that counsel failed to “investigate the mitigating factors in this case” and further failed to “properly investigate [the] law affecting the Court's determination of proper application of a sentencing variance(s).” (Id. at 6) In Ground 3, Movant complains that counsel did not make him properly aware of “the nature of the charges against him or the impact on the plea agreement he ultimately signed.” (Id. at 7) Movant's Ground 4 arguments are that counsel was ineffective at his sentencing hearing because he: (1) did not allow Movant “proper allocution”; (2) did not object to the Court's use of “otherwise mitigating factors” against Movant; (3) did not object to the Court's upward departure pursuant to U.S.S.G. § 4A1.3; and (4) did not object to the Court's application of a sentencing variance (Id. at 8).


         Movant's claims of IAC center on his counsel's representation involving his plea agreement, his change of plea hearing, and his sentencing hearing.

         A. Change of plea hearing

         At his change of plea hearing before a Magistrate Judge, Movant attested under oath that he read through his plea agreement carefully, line by line with his counsel, and that he understood its terms. (CR Doc. 75 at 6) He further stated that his counsel had explained the elements of the crime of voluntary manslaughter with him and that he understood these elements. (Id.) He attested his counsel had done a good job for him “so far” and that he was satisfied with his counsel's representation. (Id. at 7) On questioning from the Magistrate Judge, Movant declared that nothing had been promised to him other than what was contained in the plea agreement. (Id. at 8) The judge advised Movant that the maximum sentence he could receive by pleading to the crime of involuntary manslaughter was 15 years' imprisonment, and Movant stated that he understood. (Id. at 9-10)

         The judge explicitly discussed language in the plea agreement providing that there were no agreements “with regard to the final sentence in this case, ” and that the parties were “free to make any sentencing recommendations to the Court that they believe are appropriate.” (CR Doc. 75 at 10) Movant said he understood. (Id.)

         Movant verified that his counsel had explained to him the United States Sentencing Guidelines and sentencing factors the Court would need to consider at the time of his sentencing. (CR Doc. 75 at 11) Movant also agreed that his counsel had discussed how the federal sentencing guidelines and factors worked and might be applied to him in his case. (Id. at 12) The judge explained that his counsel would make a recommendation about what Movant's sentence should be, but that the sentencing judge would not be bound to follow such a recommendation. (Id. at 13) Movant attested that he understood. (Id.) Movant specifically stated he understood that the Court could sentence him to a term of up to 15 years' imprisonment, and that after considering the federal sentencing guidelines and sentencing factors, the Court would be free to impose “any reasonable sentence up to” 15 years' imprisonment. (Id.) The Magistrate Judge asked Movant whether his counsel had explained his “best estimate” about what sentence Movant might receive. (Id. at 18) The judge then cautioned Movant that the Court would not be bound by his counsel's estimate, and Movant said he understood. (Id.)

         B. ...

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