794 F.3d 885 (8th Cir. 2015), 14-2269, United States v. Harris

Docket Nº:14-2269
Citation:794 F.3d 885
Opinion Judge:COLLOTON, Circuit Judge.
Party Name:United States of America, Plaintiff - Appellee, v. Christopher J. Harris, Defendant - Appellant
Attorney:For United States of America, Plaintiff - Appellee: Don Michael Green, Assistant U.S. Attorney, Jess E. Michaelsen, Assistant U.S. Attorney, U.S. Attorney's Office, Kansas City, MO. For Christopher J. Harris, Defendant - Appellant: Carie Allen, Assistant Federal Public Defender, Ronna Ann Holloma...
Judge Panel:Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
Case Date:July 21, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
SUMMARY

Harris sold cocaine to an undercover officer at his residence. Police obtained a warrant and discovered cocaine and firearms. Harris pleaded guilty to unlawful possession of a firearm as a convicted felon, 18 U.S.C. 922(g). Harris had one conviction for felony assault and two for felony sale of a controlled substance on different occasions. The court determined that Harris was an armed career... (see full summary)

 
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794 F.3d 885 (8th Cir. 2015)

United States of America, Plaintiff - Appellee,

v.

Christopher J. Harris, Defendant - Appellant

No. 14-2269

United States Court of Appeals, Eighth Circuit

July 21, 2015

Submitted January 13, 2015.

Appeal from United States District Court for the Western District of Missouri - Kansas City.

For United States of America, Plaintiff - Appellee: Don Michael Green, Assistant U.S. Attorney, Jess E. Michaelsen, Assistant U.S. Attorney, U.S. Attorney's Office, Kansas City, MO.

For Christopher J. Harris, Defendant - Appellant: Carie Allen, Assistant Federal Public Defender, Ronna Ann Holloman-Hughes, Assistant Federal Public Defender, Federal Public Defender's Office, Kansas City, MO.

Christopher J. Harris, Defendant - Appellant, Pro se, El Reno, OK.

Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

OPINION

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COLLOTON, Circuit Judge.

After Christopher J. Harris sold cocaine to an undercover officer at his residence, police obtained a search warrant and discovered cocaine and several firearms on July 17, 2013. Harris eventually pleaded guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g).

At sentencing, the district court determined that Harris was an armed career criminal under 18 U.S.C. § 924(e), and sentenced him to the statutory minimum of 180 months' imprisonment. The court, on its own initiative, also imposed a novel special condition of supervised release that " there be no unprotected sex activities without probation office approval during the period of supervised release." In a later written order and judgment, the court attempted to modify the special condition to say that Harris " shall use contraceptives before engaging in sexual activity that may otherwise cause pregnancy unless such use would violate his religious scruples or is expressly rejected by his sexual partner." On appeal, Harris challenges both the armed career criminal determination and the special condition.

I.

We consider first the term of imprisonment. The Armed Career Criminal Act provides for a minimum term of fifteen years' imprisonment for a felon in possession of a firearm, if the defendant has three previous convictions for a " violent felony" or a " serious drug offense," committed on occasions different from one another. 18 U.S.C. § 924(e)(1). Otherwise, the statutory maximum punishment for Harris's offense is ten years' imprisonment. 18 U.S.C. § 924(a)(2). Before committing the offense in this case, Harris had sustained one conviction for felony assault and two convictions for felony sale of a controlled substance on different occasions. The district court thus concluded that Harris had previous convictions for one violent felony and two serious drug offenses, and that he was subject to enhanced punishment under § 924(e)(1).

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The court imposed the statutory minimum term of fifteen years.

On appeal, Harris argues that whether his prior drug convictions were committed on different occasions is a fact that increases the prescribed punishment for his offense. Relying on Alleyne v. United States, 133 S.Ct. 2151, 2160-61, 186 L.Ed.2d 314 (2013), he argues that the district court violated his rights under the Sixth Amendment by finding that his prior offenses were committed on different occasions without requiring that the fact be proved beyond a reasonable doubt to a jury or admitted by the defendant. According to Almendarez-Torres v. United States, 523 U.S. 224, 243-44, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), however, recidivism is not an element that must be admitted or proved to a jury. The Court in Alleyne did not revisit that " narrow exception" to the general rule. 133 S.Ct. at 2160 n.1. Whether prior offenses were committed on different occasions is among the recidivism-related facts covered by the rule of...

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