United States of America v. Gregory W. Burwell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-4043
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY W. BURWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Robert E. Payne, Senior District Judge. (3:03-cr-00203-REP-1)
Submitted: February 27, 2024 Decided: February 29, 2024
Amended: February 29, 2024
Before WILKINSON, WYNN, and HARRIS, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam opinion.
ON BRIEF: Geremy C. Kamens, Federal Public Defender, Frances H. Pratt, Assistant
Federal Public Defender, Alexandria, Virginia, Laura J. Koenig, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. Joseph Attias, Assistant United States Attorney, Kaitlin Gratton Cooke,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 4 --

2
PER CURIAM:
In October 2003, a jury convicted Gregory W. Burwell of one count each of
conspiracy to commit Hobbs Act robbery, attempted Hobbs Act robbery, and completed
Hobbs Act robbery—all in violation of 18 U.S.C. § 1951—and two counts of brandishing
a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).
The district court sentenced Burwell to an aggregate sentence of 481 months’
imprisonment. 1
Pursuant to 28 U.S.C. § 2244, we subsequently granted Burwell authorization to file
a successive 28 U.S.C. § 2255 motion 2 to challenge the validity of his § 924(c) convictions
in light of United States v. Davis, 139 S. Ct. 2319 (2019) (holding that residual clause of
§ 924(c) was unconstitutionally vague); In re Thomas, 988 F.3d 783, 789 (4th Cir. 2021)
(holding that Davis “applies retroactively to cases on collateral review”). The district court
granted Burwell’s § 2255 motion in part and vacated his § 924(c) conviction predicated on
attempted Hobbs Act robbery, denied his motion in part as to Burwell’s § 924(c) conviction
predicated on completed Hobbs Act robbery, and ordered a full resentencing. Following a
hearing, the district court sentenced Burwell to time served, followed by five years of
supervised release.
1 On appeal from the original judgment, we affirmed Burwell’s convictions and
remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). United
States v. Burwell, 162 F. App’x 203 (4th Cir. 2006) (No. 04-4200).
2 Burwell’s initial 28 U.S.C. § 2255 motion was denied on the merits.

-- 2 of 4 --

3
Burwell now appeals from the second amended criminal judgment and seeks to
appeal the district court’s partial denial of his 28 U.S.C. § 2255 motion. Counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating she found no
meritorious grounds for appeal but questioning whether the district court erred by
determining that the completed offense of Hobbs Act robbery remains a crime of violence
for purposes of 18 U.S.C. § 924(c), and therefore declining to vacate Burwell’s § 924(c)
conviction premised on Hobbs Act robbery. Although advised of his right to file a pro se
supplemental brief, Burwell has not done so. We affirm in part and dismiss in part.
When a hybrid appeal such as Burwell’s is before the court, we have explained, “[i]f
the petitioner seeks to appeal the order by raising arguments relating to the district court’s
decision whether to grant relief on his § 2255 petition, he is appealing the final order in a
proceeding under § 2255 and therefore must obtain a [certificate of appealability] under
[28 U.S.C.] § 2253.” United States v. Hadden, 475 F.3d 652, 666 (4th Cir. 2007) (internal
quotation marks omitted). “If, on the other hand, the petitioner seeks to appeal matters
relating to the propriety of the relief granted, he is appealing a new criminal sentence and
therefore need not comply with § 2253’s [certificate of appealability] requirement.” Id.
Thus, we have jurisdiction to review the propriety of Burwell’s resentencing following the
vacatur of Burwell’s § 924(c) conviction premised on attempted Hobbs Act robbery.
However, as to Burwell’s challenge to the district court’s denial of relief on his
§ 924(c) conviction premised upon completed Hobbs Act robbery, this order is not
appealable unless a circuit justice or judge issues a certificate of appealability. See 28
U.S.C. § 2253(c)(1)(B). A certificate of appealability will not issue absent “a substantial

-- 3 of 4 --

4
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district
court denies relief on the merits, a prisoner satisfies this standard by demonstrating that
reasonable jurists could find the district court’s assessment of the constitutional claims
debatable or wrong. See Buck v. Davis, 580 U.S. 100, 115-17 (2017). When the district
court denies relief on procedural grounds, the prisoner must demonstrate both that the
dispositive procedural ruling is debatable and that the motion states a debatable claim of
the denial of a constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing
Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We have independently reviewed the record
and conclude that Burwell has not made the requisite showing. See United States v. Mathis,
932 F.3d 242, 266 (4th Cir. 2019). Accordingly, we deny a certificate of appealability and
dismiss the appeal as to the district court’s partial denial of Burwell’s § 2255 motion.
In accordance with Anders, we have reviewed the entire record and have found no
meritorious grounds for appeal. Accordingly, we affirm in part, deny a certificate of
appealability, and dismiss in part. This court requires that counsel inform Burwell, in
writing, of his right to petition the Supreme Court of the United States for further review.
If Burwell requests that a petition be filed, but counsel believes that such a petition would
be frivolous, then counsel may move this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on Burwell. We dispense with
oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid in the decisional process.
AFFIRMED IN PART,
DISMISSED IN PART

-- 4 of 4 --