United States v. Harris

• Decision Date: 28 January 2014
• Docket Number: No. 12–14482,Non–Argument Calendar.,12–14482,n–Argument Calendar.
• Citation: 741 F.3d 1245
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kenneth L. HARRIS, a.k.a. Kenneth Leander Harris, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

741 F.3d 1245

UNITED STATES of America, Plaintiff–Appellee,

v.Kenneth L. HARRIS, a.k.a. Kenneth Leander Harris, Defendant–Appellant.

No. 12–14482

Non–Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.

Jan. 28, 2014.

Linda Julin McNamara, Robert E. O'Neill, U.S. Attorney's Office, Tampa, FL, Vincent A. Citro, Christopher W. Laforgia, J. Bishop Ravenel, U.S. Attorney's Office, Orlando, FL, for Plaintiff–Appellee.

Thomas H. Dale, Dale Law Firm, PA, Orlando, FL, David Howard Abrams, Attorney at Law, Lake Mary, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 6:11–cr–00206–GAP–GJK–1.

Before CARNES, Chief Judge, HULL and MARCUS, Circuit Judges.

CARNES, Chief Judge:

Kenneth Harris was convicted of three counts of Hobbs Act robbery and four other counts relating to his possession and use of firearms during those robberies. Because he had prior convictions for other violent crimes, he was sentenced to life imprisonment and consecutive prison terms totaling 57 years. Harris appeals his sentence, arguing that imposing a mandatory life sentence without a finding by the jury as to the fact of his prior convictions is inconsistent with Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). He also challenges the constitutionality of 18 U.S.C. § 3559(c) and 21 U.S.C. § 851, which provide for the imposition of mandatory life sentences for persons convicted of certain felonies, on the ground that they impermissibly remove sentencing discretion from the courts and delegate it to the executive branch.

I.

Harris was released from Florida state prison in 2008. He had been in prison for nearly sixteen years for committing numerous armed robberies in central Florida, but the time served did not have its intended effect. Just a year after his release, Harris was back at it—he robbed a local video games store four times over the course of a seven-month period. In each of these robberies, he used a gun and threatened to kill store employees. On two occasions, he discharged his weapon. During the May 6, 2009 robbery he fired a bullet in an employee's direction, narrowly missing the employee's head, and during the December 21, 2009 robbery, he shot an employee in the leg. Harris was later arrested for and charged with these crimes.

The indictment charged: four counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) and (b); four counts of using and carrying a firearm during those robberies, in violation of 18 U.S.C. § 924(c)(1)(A); and two counts of being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1). Following a three-day trial, the jury was unable to reach a verdict on three of the counts ¹ but convicted him of seven counts—three for Hobbs Act robberies, three for using a firearm during those robberies, and one for being a felon in possession of ammunition. The government, seeking a mandatory life sentence under 18 U.S.C. § 3559(c), had filed the required information under 21 U.S.C. § 851, averring that Harris previously had been convicted of one felony that qualified as a serious drug offense and seven felonies that qualified as serious violent felonies under § 3559(c).

Harris' presentence investigation report calculated a base offense level of 20 for the first robbery and related offenses under United States Sentencing Guidelines § 2B3.1(a), to which it added a 4–level enhancement under § 2B3.1(b)(3)(B) because a victim was shot in the leg. For the second and third robberies and related offenses, Harris' base offense level was 20 under § 2B3.1(a), with no adjustments. The PSR then applied a multiple count adjustment, which resulted in a total offense level of 27. Because he had prior felony convictions for robbery with a firearm and battery on a law enforcement officer, Harris qualified as a career offender under U.S.S.G. § 4B1.1. As a result, the PSR increased his offense level to 37. It calculated his criminal history category to be VI. The result was a guidelines range of 440 months to life imprisonment. Under 18 U.S.C. § 3559(c), however, a defendant convicted of a serious violent felony, who has previously been convicted of a combination of two or more serious violent felonies or serious drug offenses is subject to a mandatory sentence of life imprisonment. Harris met those criteria, and the district court imposed the statutorily mandated life sentence. It also sentenced him to serve, consecutively, 57 years imprisonment for his other crimes.

Harris contends for the first time on appeal that the Supreme Court's recent decision in Alleyne prohibits a court at sentencing from considering a defendant's prior convictions if the jury has not found that the defendant committed those crimes. He also renews the argument that he made in the district court that imposing a mandatory life sentence under 18 U.S.C. § 3559(c) is unconstitutional on separation of powers grounds.²

II.

This Court normally reviews constitutional sentencing issues de novo. United States v. Steed, 548 F.3d 961, 978 (11th Cir.2008). However, where a defendant fails to raise such an objection before the district court at sentencing, we review only for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). Because Harris raised the Alleyne argument for the first time on appeal, the proper standard of review is for plain error. Under that standard, we cannot “correct an error the defendant failed to raise in the district court” unless the defendant shows “(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. (quotation marks omitted). If those conditions are met, we may exercise our discretion to correct the error only if “the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

Because Harris raised his constitutional challenge to 18 U.S.C. § 3559 and 21 U.S.C. § 851 in the district court, we will apply de novo review to that issue.

III.

A.

Harris first contends that the imposition of a mandatory life sentence under § 3559(c) based on prior conviction facts set out in the government's § 851 information is inconsistent with the United States Constitution, as interpreted by the Supreme Court in Alleyne. He relies on the statement in Alleyne that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2155 (citation omitted). Because “[m]andatory minimum sentences increase the penalty for a crime,” the Court concluded that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Id. It was for that reason the Court in Alleyne overruled Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), which had held that the Sixth Amendment permits judicial factfinding that increases the mandatory minimum sentence for a crime.

The Alleyne Court's decision to overrule Harris was based largely on its reading of its earlier opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). It concluded that the distinction made in Harris between facts that increase the statutory maximum and facts that increase only the mandatory minimum was “inconsistent with our decision in Apprendi.” Alleyne, 133 S.Ct. at 2155. Notably, however, Apprendi itself drew a distinction between “normal” judicial factfinding and the use of prior convictions as a factual basis for sentence enhancement. The Apprendi Court held that: “ Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362–63 (emphasis added). Nothing in the facts or holding of Alleyne indicates that it eliminated Apprendi's exception for judicial findings of prior convictions that increase a criminal penalty.

As in this case, the sentence at issue in Alleyne was for the armed robbery of a store manager. And Alleyne, like Harris, was charged with a Hobbs Act robbery under 18 U.S.C. § 1951(a) and with using or carrying a firearm to commit a crime of violence under 18 U.S.C. § 924(c)(1)(A). Alleyne, 133 S.Ct. at 2155.Section 924(c)(1)(A) provides for a minimum sentence of 5 years imprisonment for anyone who “uses or carries a firearm” in relation to a “crime of violence” and increases that mandatory minimum sentence to 7 years “if the firearm is brandished.” The jury convicted Alleyne but indicated on the jury form only that he had “[u]sed or carried a firearm during and in relation to a crime of violence.” Id. at 2156. The district court went further, finding that Alleyne had also brandished the firearm. The court believed, as it had every right to do under Harris, that it could make that additional finding without violating the Sixth Amendment. Id. But the Supreme Court, which had every right to overrule Harris, did so and held that the “fact of brandishing” constituted “an element of a separate, aggravated offense that must be found by the jury.” Id. at 2162.

As this discussion indicates, Alleyne did not address the specific question at issue in this case, which is whether a sentence can be increased because of prior convictions without a jury finding the fact of those convictions. That question continues to be governed by Almendarez–Torres v. United States, 523 U.S. 224, 226–27, 118 S.Ct. 1219, 1222, 140 L.Ed.2d 350 (1998), where the Court determined that the fact of a prior conviction is not an “element” that must be found by a jury. Indeed, the Alleyne Court specifically recognized that, under Almendarez–Torres, prior convictions are excepted from the general rule that a jury must find any fact that will increase the penalty for an offense. Alleyne, 133 S.Ct. at 2160...