Harris v. U.S.

• Decision Date: 04 February 2000
• Docket Number: V,PETITIONER-APPELLAN,No. 97-4309,RESPONDENT-APPELLEE,97-4309
• Citation: 204 F.3d 681
• Parties: (6th Cir. 2000) TYRONE K. HARRIS,UNITED STATES OF AMERICA, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 681

204 F.3d 681 (6th Cir. 2000)

TYRONE K. HARRIS, PETITIONER-APPELLANT,

V.

UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.

No. 97-4309

U.S. Court of Appeals, Sixth Circuit

Argued: February 4, 2000

Decided and Filed: February 25, 2000

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 96-01235--James L. Graham, District Judge.

Melynda W. Cook (argued and briefed), Schad, Buda & Cook, Cincinnati, OH, for Appellant.

Gary L. Spartis (argued and briefed), Asst. U.S. Atty., Columbus, OH, for Appellee.

Before: Nelson, Cole, and Clay, Circuit Judges.

OPINION

David A. Nelson, Circuit Judge.

Tyrone Harris was sentenced to imprisonment for 87 months after he pleaded guilty to a charge of possessing more than 500 grams of cocaine with intent to distribute it, a violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii). On the advice of counsel, Mr. Harris voluntarily dismissed an appeal of his sentence. He later had a change of heart (and a change of lawyers), which led to the filing of a motion to vacate the sentence pursuant to 28 U.S.C. § 2255.

The § 2255 motion rested on the proposition that Mr. Harris was denied effective assistance of counsel as a result of his first lawyer's failure to object to the manner in which a presentence investigation report calculated Harris' criminal history score and his base offense level under the United States Sentencing Guidelines. (The key issue is whether Ohio misdemeanor convictions should be assigned criminal history points where the convictions resulted in "PNC" sentences of one year or more.) The district court denied the motion, and Mr. Harris appeals. We see no merit in the objections Harris says his lawyer ought to have raised, and we shall affirm the district court's order.

I.

With a co-defendant, James Bridges, Mr. Harris made repeated sales of cocaine powder and cocaine base to a government informant during the summer and fall of 1995. Harris was arrested in October of that year. A search of his house at the time of the arrest disclosed substantial quantities of cocaine powder, cocaine base and marijuana, as well as several firearms.

A federal indictment handed up against Harris and Bridges in December of 1995 contained 12 counts naming Harris. Pursuant to a plea agreement, Harris pleaded guilty to a single count of possessing cocaine with intent to distribute it; the remaining charges against him were dropped.

A probation officer prepared a presentence report calculating Mr. Harris' sentence range - a function of his offense level and his criminal history score - under the sentencing guidelines. Mr. Harris did not press an objection to the calculations, although he was given ample opportunity to do so.

In recognition of substantial assistance provided by Mr. Harris to the government in other proceedings, the United States moved for a six-level downward departure in Harris' base offense level. The district court granted the motion, thereby reducing the guideline sentence range to imprisonment for 87-108 months. (Without the departure, the range would have been 168-210 months.) The court imposed a sentence at the bottom of the revised range.

Despite his receipt of a relatively favorable sentence, and after he had voluntarily dismissed a direct appeal to this court, Mr. Harris moved for relief under 28 U.S.C. § 2255. The district court denied the motion, granted a certificate of appealability as to Harris' claim of ineffective assistance, and denied a certificate of appealability as to two additional claims. Harris filed a notice of appeal addressing the latter denial only, but this court found the notice effective to confer appellate jurisdiction over the denial of the § 2255 motion itself. See Harris v. United States, 170 F.3d 607, 608 (6th Cir. 1999). We later declined to issue an expanded certificate of appealability, so the ineffective assistance claim is the only one now before us.

II.

Mr. Harris argues that he was denied effective assistance of counsel insofar as his lawyer failed to object to the inclusion of two Ohio misdemeanor convictions in the calculation of the criminal history score. One of the convictions was for driving with a suspended license and the other was for disorderly conduct. Under U.S.S.G. § 4A1.2(c)(1), a conviction for either of those particular offenses should not be counted in calculating a criminal history score for a drug offender unless the conviction resulted in a sentence of probation for at least one year or imprisonment for at least 30 days. Mr. Harris contends that neither of his convictions resulted in such a sentence.

The contention is wrong. Although Mr. Harris was not sentenced to supervised probation, he was sentenced to "2 years PNC" on one conviction and "1 year PNC" on the other. Ohio courts use "PNC" as shorthand for "provided no convictions" - a condition on which a...