890 F.3d 480 (4th Cir. 2018), 16-4398, United States v. Harris

Docket Nº:16-4398
Citation:890 F.3d 480
Opinion Judge:GREGORY, Chief Judge
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Christopher HARRIS, Defendant-Appellant.
Attorney:Jill Eskin Major HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston, South Carolina, for Appellant. Robert Nicholas Bianchi, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. Beth Drake, United States Attorney, Nick Bianchi, Assistant United States Attorney, OFFICE ...
Judge Panel:Before GREGORY, Chief Judge, KEENAN, and FLOYD, Circuit Judges.
Case Date:May 21, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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890 F.3d 480 (4th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee,

v.

Christopher HARRIS, Defendant-Appellant.

No. 16-4398

United States Court of Appeals, Fourth Circuit

May 21, 2018

Argued: March 22, 2018

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Appeal from the United States District Court for the District of South Carolina, at Charleston. C. Weston Houck, Senior District Judge. (2:10-cr-01198-CWH-3)

ARGUED:

Jill Eskin Major HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston, South Carolina, for Appellant.

Robert Nicholas Bianchi, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

ON BRIEF:

Beth Drake, United States Attorney, Nick Bianchi, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Before GREGORY, Chief Judge, KEENAN, and FLOYD, Circuit Judges.

OPINION

Affirmed in part, reversed in part, and remanded with instructions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Keenan and Judge Floyd joined.

GREGORY, Chief Judge

Christopher Harris appeals his twenty-year sentence for conspiracy to manufacture and distribute marijuana. He primarily argues that the district court erred by failing to consider non-frivolous mitigating factors, declining to apply a two-level reduction for acceptance of responsibility, and treating second-degree kidnapping under North Carolina law as a crime of violence under the Federal Sentencing Guidelines. Harris also argues that he should have been allowed to file his sentencing memorandum under seal in district court. Due to binding circuit precedent, we must affirm Harris’s sentence despite sharing the district court’s misgivings about imposing a very lengthy sentence for a marijuana offense. We reverse and remand for the limited purpose of sealing Harris’s sentencing memorandum and requiring Harris to file a redacted version to preserve the privacy of his family.

I.

Appellant Christopher Harris took part in a conspiracy to grow and distribute marijuana from 2010 to 2011. Officers

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seized 499 marijuana plants from a co-conspirator’s motel before searching Harris’s residence, where they found a disputed number of marijuana plants.

The Government charged Harris with a number of conspiracy and drug offenses. Harris agreed to plead guilty to one count of knowingly or intentionally manufacturing marijuana under 21 U.S.C. § 841. J.A. 83. At the plea hearing, the Government claimed that agents seized 108 marijuana plants from Harris, but Harris maintained that he had only 89. J.A. 98-100. Harris otherwise agreed with the facts presented by the Government and entered his guilty plea. Despite the numerical dispute, the district court accepted the plea, believing drug quantity to be purely a sentencing issue that could be resolved later. J.A. 99-100.

Before his sentencing hearing could take place, Harris fled the country. On December 29, 2011, Harris cut his ankle monitor and escaped to Thailand, where he married a Thai national. Harris was arrested in 2012 and sent back to the United States for sentencing. Meanwhile, his wife gave birth to their child in Thailand.

The district court sentenced Harris on January 30, 2013. Because of his prior convictions, Harris was determined to be a career offender, which contributed to a Guidelines range of 360 months to life. The district court declined the requested acceptance of responsibility reduction because of Harris’s escape to Thailand. However, the district court recognized that Harris’s criminal history primarily consisted of marijuana-related offenses. According to the district court, the nationwide trend towards marijuana legalization had reduced the relative severity of marijuana offenses and therefore justified a significantly lower sentence. Ultimately, the district court decided that a downward variance was appropriate and imposed a sentence of 240 months, ten years lower than the bottom of the Guidelines range.

Harris argued for an even lower sentence because his co-defendants had received substantially lower sentences. Among the co-conspirators, the second longest sentence was five years. However, the district court noted that Harris’s co-defendants were not career offenders, which accounted for the disparity.

Nearly two years after Harris began serving his sentence, his conviction was vacated under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Contrary to the district court’s understanding at the plea hearing, the dispute over the number of plants seized from Harris was critical to the validity of the guilty plea. Distribution of at least 100 marijuana plants had the effect of increasing Harris’s maximum sentence under 21 U.S.C. § 841(b)(1)(B). As a result, that fact had to be either found by a jury beyond a reasonable doubt or pleaded to by the defendant. See id. at 490, 120 S.Ct. 2348 ("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."). This error was corrected on a 28 U.S.C. § 2255 motion, and Harris’s conviction was vacated in 2015.

With his conviction vacated, Harris negotiated a new plea. Harris agreed to plead guilty to conspiracy to distribute 100 or more marijuana plants, rather than actual manufacturing or distribution. This obviated the dispute over the plants seized from Harris because, under conspiracy liability, Harris was responsible for the well-over 100 plants that were seized from his co-conspirator(s). The Government continued to pursue the career offender enhancement, arguing that Harris’s prior conviction for kidnapping in North Carolina was

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a crime of violence under § 4B1.2 of the Federal Sentencing Guidelines. However, unlike before, the Government declined to pursue an enhancement for a prior drug offense under 21 U.S.C. § 851. J.A. 239.

On June 28, 2016, the district court conducted Harris’s second sentencing hearing, which is the subject of this appeal. The district court agreed with the Government that Harris should again be sentenced as a career offender. Nevertheless, because the Government did not pursue the drug enhancement under 21 U.S.C. § 851, Harris’s Guidelines range dropped to 262 to 327 months, down from the 360 months to life that the Guidelines previously recommended. Harris presented mitigation arguments, arguing that he had been successfully rehabilitated while in prison and that marijuana offenses are generally less severe than other offenses in light of marijuana legalization as a national trend.

Notwithstanding the drop in the Guidelines range, the district court again sentenced Harris to 240 months, with credit for the time that Harris had already served. The district court indicated that it was imposing the same sentence, for the reasons that it gave at the first sentencing hearing, because Harris was largely in the same position. The district court discussed the rehabilitation evidence but discredited it in light of Harris’s criminal history. The district court also refused to grant a two-level reduction for acceptance of responsibility, again because of Harris’s escape to Thailand. Finally, the district court declined to seal Harris’s sentencing memorandum, concluding that it contained only routine information.

This direct appeal followed, challenging both the sentence and the refusal to restrict public access to the sentencing filing.

II.

On appeal, Harris challenges his sentence on four grounds. First, Harris argues that the district court did not give his sentence the full, individualized consideration to which he was entitled because the court wanted to reinstate the vacated sentence from the outset and may have confused the procedural posture of the case. Second, Harris argues that he should have received a two-level reduction for acceptance of responsibility. Third, Harris argues that he should not have been sentenced as a career offender because kidnapping under North Carolina law was not categorically a "crime of violence." And fourth, Harris argues that his sentence under the career offender provision of the Sentencing Guidelines violates the Eighth Amendment. For the reasons below, we affirm Harris’s sentence.

A.

Despite some arguably imprecise language, the district court adequately conducted a de novo sentencing hearing by performing an individualized assessment of all relevant sentencing factors. As this Court held in United States v. Blue, a sentencing judge must explain each sentence that she imposes by addressing all non-frivolous mitigation arguments raised by the defendant. 877 F.3d 513, 518 (4th Cir. 2017). The sentencing court’s explanation need not be extensive, but the record must make clear that the judge actually listened to, considered, and rendered a decision on these arguments such that this Court can conduct a meaningful review of the sentence imposed. Id. at 520-22. Here, the district court satisfied this requirement by directly explaining and incorporating by reference its reasons for dismissing each of the mitigation arguments that Harris raised.

Harris argues that, in the district court’s own words, it did not conduct a new sentencing

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hearing but instead performed a perfunctory one with the goal of reaching the same outcome as it previously reached. Specifically, the district court said, "I gave him what I thought was a valid, fair sentence. And I still think it’s valid, and I still think it’s fair. But why is it that you insist I sentence him again?" J.A. 238. The court later reiterated, "Last time I gave him 240...

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