42 F.3d 427 (7th Cir. 1994), 94-2056, United States v. Harrison

Docket Nº:94-2056.
Citation:42 F.3d 427
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey W. HARRISON, Defendant-Appellant.
Case Date:December 13, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 427

42 F.3d 427 (7th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jeffrey W. HARRISON, Defendant-Appellant.

No. 94-2056.

United States Court of Appeals, Seventh Circuit

December 13, 1994

Argued Oct. 12, 1994.

Page 428

Francis D. Schmitz, Asst. U.S. Atty., Milwaukee, WI (argued), for plaintiff-appellee.

Jeffrey W. Jensen, Milwaukee, WI (argued), for defendant-appellant.

Before CUMMINGS, MANION and KANNE, Circuit Judges.

MANION, Circuit Judge.

Jeffrey Harrison was charged with two counts of theft of food stamps from a United States post office, 18 U.S.C. Sec. 1708, and one count of impeding a United States postal

Page 429

inspector. 18 U.S.C. Sec. 111. He pleaded guilty to one count of theft, and the remaining charges were dropped. The district court imposed a term of 33 months' imprisonment. On appeal, Harrison challenges only his sentence, arguing that his base offense level should not have been increased pursuant to the obstruction of justice and "more than minimal planning" provisions of the Sentencing Guidelines. We affirm.

I.

In December 1993, U.S. postal inspectors were informed of missing food stamps at the Harbor Station post office in Milwaukee, Wisconsin. On January 31, 1994, through electronic surveillance, postal inspectors observed Harrison, a contract custodian, as he entered the post office and walked directly to a cart where food stamp letters are placed for redelivery. Harrison removed several letters from the cart, including an envelope containing food stamps that had been placed there by the postal inspectors.

On February 5, 1994, Harrison entered the post office at 5:45 a.m., hung his coat in the custodial closet and walked to a desk near the cart. He removed mail from the desk and then walked into the supervisor's office with the mail and empty trash bags. While he was in the office, postal inspectors heard what sounded like paper being torn. Harrison also made a phone call at 6:10 a.m. and was overheard saying, "Greg, I'll be there in about 30 minutes." When Harrison exited the office, he did not have the mail in his hands. He then removed a bundle of letters from the cart, placed them in a trash can he was carrying, and entered the custodial closet. He walked out of the closet approximately three minutes later without the letters and headed towards the lobby. He left the building at approximately 6:50 a.m. A postal inspector recovered twenty food stamp envelopes and address inserts from the post office trash. Food stamps were missing from all the envelopes except one.

Following his arrest on February 7, 1994, Harrison appeared before Magistrate Judge Robert L. Bittner. Magistrate Judge Bittner told Harrison that he had the right to remain silent in these proceedings and that anything he said could be held against him. He was also informed of his right to an attorney. Harrison stated that he understood his rights and asked that an attorney be appointed to represent him. The prosecutors informed the judge that they believed Harrison was presently on parole for an offense committed in Pennsylvania and that they were waiting for verification. Harrison interrupted and asked if he could speak. He then stated that he was "not on any parole." The Philadelphia Parole Office subsequently provided information indicating that at the time Harrison committed the instant offense, he was in fact under parole supervision for theft and firearm charges, perjury, and retail theft. The parole term for the theft and firearm charges was due to expire on May 19, 1994. The magistrate judge temporarily detained Harrison for ten days or until the State of Pennsylvania filed a detainer against him pursuant to 18 U.S.C. Sec. 3142(d). Following a detention hearing, Harrison was detained pending trial because "no condition or combination of conditions exist which would allow this defendant to be released." 18 U.S.C. Sec. 3142(e).

At sentencing, Harrison testified that he did not intentionally mislead Magistrate Judge Bittner about his parole status because he believed that he was entitled to four months good time credit which would move up his parole expiration date to January 19, 1994. Harrison admitted, however, that he left Pennsylvania without notifying his parole officer and that he was aware that a parole revocation hearing was to be scheduled.

The district court determined that Harrison's false statements to the magistrate judge regarding...

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