In United States v. Burke, No. 16-16458 (July 19, 2017) (William Pryor, Ed Carnes, Dubina), the Court held that the term "prior sentence" under U.S.S.G. 4A1.1(a) includes a state sentence imposed after the defendant's initial federal sentence but before the district court vacated that sentence and re-sentenced him.
In 2010, Burke was sentenced as an armed career criminal. In 2011, a Florida state court sentenced him on a variety of offenses. In 2016, the district court granted Burke's 2255 motion based on Johnson, vacated the initial sentence, and conducted a full re-sentencing. At that re-sentencing, the court treated the 2011 Florida sentences as "prior sentences" for purposes of calculating his criminal history. The court of appeals held that this was correct because, when a district court vacates a sentence, that sentence becomes void in its entirety. "[V]acatur in our Circuit wipes the slate clean," and re-sentencing is de novo. Therefore, the 2011 sentences became "prior sentences" when he was re-sentenced in 2016. In so holding, the Court joined the Eighth and Ninth Circuits and rejected a contrary decision from the First Circuit. It also rejected Burke's reliance on the rule of lenity, finding the text of the Guideline clear, but also doubting that the rule of lenity applies to the advisory Guidelines at all.
The Court also rejected Burke's argument that his 1999 Florida armed robbery conviction was not a crime of violence under U.S.S.G. 2K2.1, because that argument was foreclosed by binding precedent in Fritts and Lockley.
