United States v. Harris

429 F. App'x 543
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 12, 2011
Docket07-5845
StatusUnpublished
Cited by3 cases

This text of 429 F. App'x 543 (United States v. Harris) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Harris, 429 F. App'x 543 (6th Cir. 2011).

Opinions

COOK, Circuit Judge.

Timothy Harris pleaded guilty to conspiracy to distribute fifty grams or more of cocaine base (crack cocaine), and the district court sentenced him to 300 months’ imprisonment. Harris now challenges his sentence as (A) violating the Eight Amendment; (B) violating his substantive due process rights; and (C) procedurally and substantively unreasonable. Because the district court committed procedural error, we vacate his sentence and remand for resentencing.

I.

As a result of a drug-trafficking investigation, a grand jury issued a forty-seven-count indictment — later increased to fifty-one counts by superseding indictment— against Harris and fifteen other defendants. The indictment charged Harris with conspiracy to distribute fifty grams or more of crack cocaine; possession with intent to distribute five grams or more of crack cocaine; and four counts of using a telephone to facilitate a drug transaction. Because Harris had incurred several felony drug convictions during the 1980s, the government filed an enhanced-sentencing notice.

Harris pleaded guilty to the conspiracy charge without the benefit of a plea agreement. Prior to sentencing, probation prepared a presentence investigation report (PSR) that calculated an offense level of twenty-nine, including a three-level acceptance-of-responsibility reduction. The PSR assigned Harris to criminal history category II, resulting in a Guidelines range of 97-121 months’ imprisonment. But under 21 U.S.C. § 841(b)(1)(A), Harris’s prior convictions subjected him to a mandatory-minimum sentence of life imprisonment, which became his Guidelines range. See U.S.S.G. § 5Gl.l(b). Neither party objected to the PSR.

The government moved for a downward departure for substantial assistance under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, and the district court granted the motion. Finding that life imprisonment first appeared for a defendant in criminal history category II at offense level forty-one, the district court departed downward two levels, resulting in a Guidelines range of 292-365 months’ imprisonment.

The district court then entertained the parties’ arguments regarding the 18 U.S.C. § 3553(a) factors. It sentenced Harris to 300 months’ imprisonment and, [545]*545at the government’s request, dismissed the remaining counts against him.

II.

A.

Harris first argues that the 100:1 crack-to-powder ratio — which Congress relied on when enacting § 841(b)’s criminal penalties — creates a sentence so disproportionate to his crime as to violate the Eighth Amendment.

Harris failed to raise an Eighth Amendment challenge before the district court, and he advances no argument on appeal that his case presents an “exceptional circumstance” that warrants review of this issue. See United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir.1997). Given these failings, we consider the Eighth Amendment challenge forfeited.

Yet Harris’s claim also fails on the merits. This court has consistently held that the 100:1 ratio survives Eighth Amendment scrutiny, see United States v. Berry, 290 Fed.Appx. 784, 793 (6th Cir.2008), even if it is based on now-debunked science-and-policy theories, see United States v. Washington, 127 F.3d 510, 516-18 (6th Cir.1997). And our precedent comports with Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), despite Harris’s assertion otherwise: Kimbrough says nothing about the constitutional validity of the ratio and thus “provides no reason to reconsider our constitutional rulings on the facts of this case.” Berry, 290 Fed.Appx. at 793. Finally, to the extent Harris attempts to raise an as-applied Eighth Amendment challenge, he insufficiently develops this argument — and thus forfeits it — because he offers no explanation of how his sentence violates the narrow-proportionality principle. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997).

B.

Harris next argues that the 100:1 ratio “lacks a substantive basis in fact or sound policy and therefore violates due process.” Harris’s substantive due process challenge fails on the merits for the same reason as his Eighth Amendment challenge: this court has held that the 100:1 ratio satisfies substantive due process, and that decision binds us. See Washington, 127 F.3d at 516-18.

C.

Finally, Harris attacks his sentence as unreasonable, criticizing the district court for (1) failing to consider his acceptance of responsibility, (2) deeming him violent based on his arrest record and previous convictions when considering the § 3553(a) factors, (3) ascribing undue weight to the discredited 100:1 ratio, and (4) issuing a sentence greater than reasonably necessary. When reviewing a district court’s sentence for reasonableness, we first “ensure that the district court committed no significant procedural error,” and “then consider the substantive reasonableness of the sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In doing so, we apply “a deferential abuse-of-discretion standard.” Id. at 41,128 S.Ct. 586.

The government attempts to forestall Harris’s challenge by claiming that we lack jurisdiction over his claims. And, in fact, where “the district court grants a downward departure for substantial assistance and the defendant’s claim on appeal goes only to the extent of the departure, this Court has no jurisdiction over the appeal.” United States v. Jones, 417 F.3d 547, 551 (6th Cir.2005). But “a defendant may still appeal a sentence ‘imposed in violation of the law [or] ... imposed as a result of an [546]*546incorrect application of the sentencing guidelines.’ ” United States v. Bullard, 390 F.3d 413, 415 (6th Cir.2004) (alterations in original) (quoting 18 U.S.C. § 3742(a)(1)(2)).

Harris does not challenge the extent of his substantial-assistance departure, but rather argues for a variance and challenges the reasonableness of his sentence — rendering jurisdiction proper. See United States v. Gapinski, 561 F.3d 467, 475 n. 3 (6th Cir.2009) (“[T]he rule precluding review of the extent of a downward departure ... would not preclude this court from reviewing the district court’s consideration — or lack thereof — of a request for a variance based upon the § 3553(a) factors or the overall reasonableness of the sentence.”).

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Related

United States v. Lavone Williams
687 F.3d 283 (Sixth Circuit, 2012)
Harris v. United States
181 L. Ed. 2d 437 (Supreme Court, 2011)

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Bluebook (online)
429 F. App'x 543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-harris-ca6-2011.