United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION FOR RECONSIDERATION, DENYING
CERTIFICATE OF APPEALIBILITY AND DENYING LEAVE TO APPEAL IN
L. LUDINGTON United States District Judge.
January 28, 2015 a one-count indictment was issued charging
Defendant Fred Andrew Burlingame with being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). A first superseding indictment was issued on
February 11, 2015, followed by a second superseding
indictment on April 8, 2015 that charged Burlingame with one
additional count of manufacturing or attempting to
manufacture methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C) and 846, and one
additional count of possessing an unregistered firearm in
violation of 26 U.S.C. § 5861(d). Burlingame pled guilty
to the methamphetamine charge on June 9, 2016. See
ECF No. 20. On September 22, 2015 he was sentenced to 188
months of imprisonment.
April of 2016, Burlingame has filed numerous motions
requesting various forms of relief, including a request for
Judge Ludington to recuse himself from these proceedings and
a request for habeas relief pursuant to 28 U.S.C. §
2255. See ECF Nos. 35, 42, 52. On April 18, 2016
Burlingame filed a pro se motion for a reduction in
his sentence based on retroactive application of 28 U.S.C.
§ 994(u) pursuant to 28 U.S.C. § 3582. See
ECF No. 33. In this first motion for retroactive application,
Burlingame argued that he should be resentenced under
Amendment 782, which reduced the base offense level for
certain drug quantities by two levels. Id. On August
16, 2016 Burlingame filed a second motion for a reduction of
his sentence pursuant to 28 U.S.C. § 3582. See
ECF No. 48. In this second motion, Burlingame sought the
retroactive application of Amendment 794, which establishes a
sentence reduction for a defendant who is found to have
played a minor role in a conspiracy.
motions for retroactive application were denied by this Court
in an order dated October 19, 2016. See ECF No. 63.
On October 28, 2016 Burlingame filed a motion for
reconsideration, arguing that the Court erred in failing to
address each motion separately. See ECF No. 75. For
the reasons stated below, Burlingame's motion for
reconsideration will be denied.
motion for reconsideration will be granted if the moving
party shows: “(1) a palpable defect, (2) the defect
misled the court and the parties, and (3) that correcting the
defect will result in a different disposition of the
case.” Michigan Dept. of Treasury v. Michalec,
181 F.Supp.2d 731, 733-34 (E.D. Mich. 2002) (quoting E.D.
Mich. LR 7.1(g)(3)). A “palpable defect” is
“obvious, clear, unmistakable, manifest, or
plain.” Id. at 734 (citing Marketing
Displays, Inc. v. Traffix Devices, Inc., 971 F.Supp.2d
262, 278 (E.D. Mich. 1997)). “Motions for rehearing or
reconsideration which merely present the same issues ruled
upon by the Court, either expressly or by reasonable
implication, shall not be granted.” Id.
(quoting E.D. Mich. 7.1(h)(3)).
is correct that this Court's October 19, 2016 contained a
palpable defect in that it did not consider each motion for
retroactive application separately. However, considering the
merits of each motion separately does not result in a
different disposition of the case or entitle Burlingame to
initial motion for retroactive application will be discussed
first. See ECF No. 33. Under 28 U.S.C. § 3582,
a court may modify a term of imprisonment when a defendant
has been sentenced based on a sentencing range that has been
subsequently lowered by the Sentencing Commission.
Specifically, §1B1.10 allows a court to reduce a term
imprisonment when a guideline range applicable to that
defendant has been lowered as a result of an amendment to the
Guidelines Manual. § 1B1.10(a)(1). In November of 2014,
Amendment 782 effectively reduced by two levels the base
offense levels for possession of certain drug quantities.
was not indicted until January 28, 2015, and was not
sentenced until September 17, 2015. See ECF Nos. 1,
28. Amendment 782 was therefore in effect at the time of his
sentencing, and governed his sentence. Because Burlingame
already received the benefit of Amendment 782, his first
motion for retroactive application will be denied. Because he
is not entitled to resentencing, his “post-sentencing
rehabilitation accomplishments” are irrelevant, and
will not be considered. See ECF No. 40.
addition to seeking relief pursuant to 28 U.S.C. § 3582
in his first motion for retroactive application Burlingame
also argues that his sentence violated equal protection and
was motivated by animus. These arguments are not related to
any retroactive provisions of the sentencing guidelines, and
thus fall outside the scope of § 3582. Because
Burlingame has not raised the arguments using the proper
vehicle they will be disregarded at this time.
second motion for retroactive application seeks a sentence
reduction based on his alleged minor role in a conspiracy. As
an initial matter, it is noted that Burlingame was neither
charged with nor convicted of any conspiracy ...