USA v. Burford

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
HAL FREDERICK BURFORD,
Defendant.
ORDER DENYING
DEFENDANT’S MOTION UNDER
28 U.S.C. § 2255
Case No. 3:06-cr-00102-TMB
I. 	INTRODUCTION
Hal Frederick Burford moves pursuant to 28 U.S.C. § 2255 to vacate his sentence and
remand for resentencing, alleging that the mandatory minimum sentence imposed was based on a
fact not found by the jury and that the enhancement of his sentence under 21 U.S.C. § 851 was
an unconstitutional delegation of authority.1 The government opposes the motion on the grounds
that the claims are time-barred and lack merit.2 For the reasons that follow, the Court DENIES
Burford’s motion at Docket 139.
II. 	BACKGROUND
1. 	Investigation, Arrest, Search, and Seizure
On November 22, 2006, members of the Drug Enforcement Agency (DEA) Alaska
Interdiction group worked a FedEx sorting facility in Anchorage, Alaska to investigate the
transportation of controlled substances via parcel services.3 The group identified a package of
1 Dkt. 139 at 4-5.
2 Dkt. 151.
3 Dkt. 1 at 2-5 (Affidavit of Matthew Heieren in Support of Criminal Complaint).
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interest addressed to “H.F. Burford” at 2051 Bofrals (Borealis) Dr., Anchorage, AK 99503. 4
Task Force Officer Matthew Heieren petitioned for and was granted a search warrant for the
package.5 Heieren discovered approximately 11 pounds of a crystalline substance in the package
that field tested positive for the presence of methamphetamine.6 Heieren petitioned for and was
granted authorization from the State of Alaska to place an electronic monitoring device in the
package.7 The monitoring device was placed in the package and most of the methamphetamine
was substituted with rock salt; approximately one gram of the actual methamphetamine was also
placed in the package and the contents were sprayed with theft detection powder.8
On November 24, 2006, an agent posing as a FedEx delivery driver delivered the package
to Burford at 2051 Borealis Drive.9 Burford placed the package in his vehicle and drove to an
apartment complex at 2224 D Street; he then entered an apartment with the package in his
hands.10 Shortly thereafter, the electronic monitoring device in the package alerted the agents
and officers that the box had been opened. 11 Burford left the apartment without the package and
agents arrested him as he approached his vehicle.12 Agents entered the apartment and discovered
the package on a couch in the living room as well as numerous rifles, two safes, and a bundle of
4 Id. at 4 ¶ 5.
5 Id.
6 Id. ¶ 6.
7 Id. at 5 ¶ 7.
8 Id. ¶ 8.
9 Id.
10 Id. at 6 ¶ 9.
11 Id. at 7 ¶ 10.
12 Id.
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U.S. currency in the bedroom closet.13 Agents also discovered traces of theft detection powder
on Burford’s hands.14
2. 	Trial, Sentencing, and Appeals
On December 15, 2006, the government filed a four-count indictment against Burford:
Count 1 charged attempted possession of methamphetamine with intent to distribute, Count 2
charged being a felon in possession of a firearm, and Counts 3 and 4 dealt with forfeiture.15 The
government later filed a notice of intent to seek enhanced statutory penalties pursuant to 21
U.S.C. § 851 based on Burford’s prior felony conviction in 1986 for misconduct involving a
controlled substance in the fourth degree.16
Counts 1 and 3 were severed for trial; Burford pleaded not guilty to Count 1, the
distribution count, and was tried before a jury.17 At trial, forensic chemist Kevin Chan testified
as to the weight of the various drugs seized from the apartment and to tests that positively
identified the presence of methamphetamine and other narcotics.18 On March 30, 2007, a jury
found Burford guilty of Count 1.19 The jury was then instructed to enter a special verdict on the
related forfeiture count, Count 3; it found that $144,000 in currency seized from the apartment
was subject the forfeiture.20 After a bench trial for Counts 2 and 4, the court found Burford
13 Id. ¶ 11.
14 Id. ¶ 12.
15 Dkt. 142 at 4.
16 Dkt. 43.
17 Dkt. 142 at 5.
18 Id.
19 Dkt. 81.
20 Dkt. 142 at 7.
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guilty of being a felon in possession of firearms and that the firearms were subject to forfeiture.21
Based on an offense level of 36 and a criminal history category of II, Burford’s guideline
imprisonment range was 210 to 262 months. 22 On July 2, 2007, the Court imposed a sentence of
240 months for the drug charge and 120 months for the firearms count, to be served
concurrently.23
Burford appealed and the Ninth Circuit Court of Appeals affirmed his conviction.24 On
January 16, 2009, Burford filed a petition for certiorari; the United States Supreme Court denied
the petition.25 Burford filed this § 2255 petition on June 16, 2014, claiming: (1) that the
mandatory minimum sentence imposed was based on a fact not found by the jury in violation of
the Supreme Court’s holding in Alleyne v. United States,26 and (2) that the enhancement of his
sentence under 21 U.S.C. § 851 was an unconstitutional delegation of authority.27
III. 	DISCUSSION
The government asserts that the Court need not address the merits of Burford’s claims
because they are time-barred.28 Petitions brought under § 2255 are subject to a one-year statute
of limitations that runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
21 Dkt. 94.
22 Dkt. 97-4 at 15 ¶ 105.
23 Dkt. 104.
24 Dkt. 139 at 2 ¶ 9.
25 Dkt. 151 at 1.
26 133 S.Ct. 2152 (2013).
27 Dkt. 139 at 4-5.
28 Dkt. 151 at 1.
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(2) the date on which the impediment to making a motion created by governmental action
in violation of the Constitution or laws of the United States is removed, if the movant
was prevented from making a motion by such governmental action;
(3) the date in which the right asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.29
Burford’s judgment of conviction became final in January 2009, but he contends that his claims
are timely based on subsections (3) and (4), respectively.
A. Burford’s First Claim is Untimely Under § 2255(f)(3) Because the Alleyne Rule
Does Not Apply Retroactively
Burford argues that his first claim is not time-barred because it was brought within one
year of the decision in Alleyne v. United States where the Supreme Court recognized the
requirement that any “element” of an offense that increases a defendant’s mandatory minimum
sentence must be submitted to the jury and found beyond a reasonable doubt.30 Since Burford’s
mandatory minimum sentence was based in part on the quantity of the drugs involved in his
offense, a fact not submitted to the jury, he argues that the Alleyne decision opened the door for
him to bring the first claim.
Although Alleyne established a new rule or right within the meaning of § 2255(f)(3), the
right asserted must also be “made retroactively applicable to cases on collateral review.”31
Recently, the Ninth Circuit explicitly rejected the contention that the Alleyne decision would
apply retroactively on collateral review.32 In Hughes, the Ninth Circuit explained that the
29 28 U.S.C. 2255(f).
30 133 S.Ct. 2152, 2155 (2013). The Supreme Court decided Alleyne on June 17, 2013 and Burford filed
the present motion on June 16, 2014.
31 28 U.S.C. § 2255(f)(3).
32 Hughes v. United States, 770 F.3d 814 (9th Cir. 2014).
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Supreme Court neither expressly nor through a combination of holdings in other cases made the
rule in Alleyne apply retroactively.33 Since Alleyne does not apply retroactively, § 2255(f)(3)
does not apply and Burford’s first claim is untimely.
B. Burford’s Second Claim Fails Because § 2255(f)(4) Does Not Apply, and even if
it did, the Prosecutor’s Application of the § 851 Sentencing Enhancement Was
Not an Unconstitutional Delegation of Authority
Burford contends that his second claim is not time-barred because it was brought within
one year of the issuance of a memorandum by Attorney General Eric Holder that lists several
factors for prosecutors to consider when deciding whether to apply a § 851 enhancement.34 The
memorandum’s overall purpose was to highlight the need to exercise prosecutorial discretion in
charging defendants and “refine [the department’s] charging policy regarding mandatory
minimums for certain nonviolent, low-level offenders.”35
In United States v. Mistretta, the Supreme Court emphasized that Congress’s delegation
of authority to another branch of government is permissible when there are “intelligible
principle[s] to which the person or body authorized [] is directed to conform.” 36 The court
explained that the delegation is “constitutionally sufficient if Congress clearly delineates the
general policy, the public agency which is to apply it, and the boundaries of this delegated
33 Id. at 817-19.
34 Dkt. 139 at 5-6. It is the Court’s understanding that Burford seeks to avail himself of § 2255(f)(4) to
establish the timeliness of his second claim based on his statement that the reason he failed to raise the
issue on direct appeal was because “[t]he new evidence of Attorney General Holder’s memo was not
available until August 12, 2013.” Id. at 6.
35 Dkt. 142-1 (Memorandum from Attorney General Eric Holder to the United States Attorneys and
Assistant Attorney General for the Criminal Division, Department Policy on Charging Mandatory
Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (August 12, 2013)).
36 488 U.S. 361, 372 (1989) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409
(1928)).
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authority.”37 Burford contends that prosecutors in this case lacked “intelligible principles” by
which to exercise their sentencing discretion under § 851 and that “decisions to apply or waive
§ 851 enhancements were made in the absence of any national policy” prior to Attorney General
Holder’s 2013 memorandum. 38 Thus, Burford argues that the prosecutor’s application of the
sentencing enhancement in his case was an unconstitutional delegation of authority.39
Under § 2255(f)(4), the one-year statute of limitations may run from “the date on which
the facts supporting the claim or claims presented could have been discovered through the
exercise of due diligence.” The Court is not persuaded that Attorney General Holder’s
Memorandum constitutes a “fact” contemplated by the statute. While the Supreme Court has
found that § 2255(f)(4) can cover newly discovered “facts” that are not case-specific such as the
vacatur of a sentence40 or a change in a criminal statute that altered the qualifications for a
sentencing enhancement to apply,41 a memorandum highlighting sentencing disparities and
identifying factors for prosecutors to consider in sentencing a criminal defendant does not
directly impact Burford’s case in the same manner.42
37 Id. (quoting American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)).
38 Dkt. 139 at 5.
39 Dkt. 142 at 13.
40 Johnson v. United States, 544 U.S. 295, 310 (2005).
41 Reina-Rodriguez v. United States, 655 F.3d 1182, 1193 (9th Cir. 2011); see also United States v.
Antwine, 2012 WL 6013207 (D. Alaska August 31, 2012) (where sentencing court used defendant’s prior
conviction of burglary as a “violent crime” to qualify him as a career offender subject to a sentencing
enhancement, and the circuit court later held that burglary did not qualify as a “violent crime,”
defendant’s habeas petition could be filed within one year of the date wherein the circuit court recognized
that fact)
42 See, e.g., United States v. Cazarez-Santos, 2014 WL 6906742, *3 (S.D. Cal. Dec. 8, 2014) (defendant’s
habeas claim was untimely because his final removal order did not amount to a new “fact” underlying or
giving rise to his claim).
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Even if the Court construes § 2255(f)(4) to encompass Attorney General Holder’s
Memorandum, however, Burford’s second claim is still time-barred. § 2255(f)(4) applies when
the facts supporting the claim could not have been discovered through due diligence.43 “Due
diligence does not require the maximum feasible diligence, but it does require reasonable
diligence in the circumstances.”44 Burford does not allege any facts that suggest the purported
absence of “intelligible principles” could not have been discovered before Attorney General
Holder’s memorandum or make any showing that he acted with due diligence in seeking to learn
whether prosecutors had sufficient guidance for applying a § 851 enhancement. If intelligible
principles were indeed lacking when Burford was sentenced, that fact would have been
discoverable through due diligence at the time, and nothing prevented Burford from filing his
petition based on that fact in 2009.
Moreover, contrary to Burford’s claim, the Ninth Circuit in United States v. Jensen
rejected the argument that § 851 is an unconstitutional delegation of authority.45 The court was
persuaded by the reasoning in cases from the Sixth and Eleventh Circuits that “Congress had
provided altogether intelligible principles to render the delegation constitutional.”46 Although
Attorney General Holder’s memorandum was not available at the time Jensen was decided,
nothing about the memorandum alters the basis of the Ninth Circuit’s conclusion: that sufficient
intelligible principles were in place to render the delegation of sentencing authority under § 851
constitutional.
43 United States v. Ndiagu, 591 Fed.Appx. 632, 634 (9th Cir. 2015).
44 Id. (quoting Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012)).
45 425 F.3d 698, 707 (9th Cir. 2005).
46 Id. (quoting United States v. Cespedes, 151 F.3d 1329, 1331 n. 1 (11th Cir. 1998)).
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Attorney General Holder’s memorandum elucidated certain disparities in the application
of mandatory minimum sentences and sentencing enhancements and provided further guidance
for prosecutors when determining whether to apply an § 851 enhancement. The memorandum
does not, however, indicate that intelligible principles were completely lacking or that the
delegation of sentencing authority was up until that point unconstitutional. The fact that
Attorney General Holder chose to issue a memorandum to “refine” that policy does not make the
delegation of authority unconstitutional and thus Burford’s second claim must fail.
IV. 	CONCLUSION
The Court has reviewed the parties’ briefing on Burford’s 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his sentence and finds Burford’s claims time-barred and lacking in
merit. The Court therefore DENIES Burford’s § 2255 motion at Docket 139. The Court also
STRIKES Plaintiff’s supplemental authority at Docket 154 because Plaintiff failed to seek leave
of the Court before filing it in violation of Local Rule 7.1.
Finally, under 28 U.S.C. § 2253(c)(2), a Certificate of Appealability may be granted
"only if the applicant has made a substantial showing of the denial of a constitutional right."47
Because the Court concludes that Burford is unable to make the required showing, the Court
47 See also Fed. R. Governing § 2255 Proceedings, Rule 11(a) (“The district court must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.”).
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declines to issue a Certificate of Appealability. Any future request for a Certificate of
Appealability must be addressed to the Court of Appeals.48
Dated at Anchorage, Alaska, this 5th day of May, 2015.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
48 See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1(a) ("Petitioners appealing the district court’s judgment
in either a 28 U.S.C. § 2254 or a § 2255 proceeding shall follow the procedures set forth in FRAP 4 and
22(b). A motion for a certificate of appealability (‘COA’) must first be considered by the district court. If
the district court grants a COA, the court shall state which issue or issues satisfy the standard set forth in
28 U.S.C. § 2253(c)(2). The court of appeals will not act on a motion for a COA if the district court has
not ruled first.”).
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