Harris v. United States, Criminal No. 2:10-01198-MBS

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtMargaret B. Seymour Senior United States District Judge
PartiesChristopher Harris, Movant, v. United States of America, Respondent.
Docket NumberCriminal No. 2:10-01198-MBS
Decision Date10 June 2021

Christopher Harris, Movant,
v.
United States of America, Respondent.

Criminal No. 2:10-01198-MBS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

June 10, 2021


OPINION AND ORDER

Movant Christopher Harris is an inmate in custody of the Bureau of Prisons. He seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

BACKGROUND

On June 16, 2011, a federal grand jury returned a seven-count Third Superseding Indictment charging Movant with conspiracy to possess with intent to distribute and to distribute marijuana in a conspiracy involving 1,000 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 ("Count 1"), and manufacture of and possession with intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2 ("Count 6"). Pending trial, the court released Movant on an unsecured bond and pursuant to certain conditions. On December 7, 2011, Movant pleaded guilty to Count 6 and the court continued Movant on bond. See ECF 254. On February 7, 2012, the court issued a warrant for Movant's arrest upon motion of the United States Probation Office ("USPO") reporting that Movant had absconded from supervision. Movant was arrested in Thailand and returned to the District of South Carolina, where the court revoked his bond and remanded him to custody.

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The USPO prepared a presentence investigation report ("PSR"), which reflects that Movant's criminal history score was 9 and his criminal history category was IV. The PSR designated Movant as a career offender pursuant to United States Sentencing Guidelines § 4B1.1, on the basis of a prior conviction for felony possession with intent to sell or deliver cocaine, felony second degree kidnapping in North Carolina, and three felony drug charges prosecuted together in August 2003 ("2003 Convictions").1 As a career offender, Movant's criminal history category increased to VI. The government also filed a notice under 21 U.S.C. § 851 that Movant was subject to enhanced penalties as a result of prior felony drug convictions. The PSR attributed at least 100 but less than 400 kilograms of marijuana to Movant, for a base offense level of 26. Movant received a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(12) upon the determination that he had maintained a premises for the purpose of manufacturing or distributing a controlled substance, for an adjusted offense level of 28. Movant also received a two-level increase for obstruction pursuant to U.S.S.G. § 3C1.1, for an adjusted offense level of 30. On account of Movant's career offender status, his offense level increased another seven levels to a total offense level of 37. See U.S.S.G. § 4B1.1. Movant's Guidelines range for imprisonment was 360 months to life, and the penalty associated with Count 6 carried a 10-year (120-month) statutory mandatory minimum.

Prior to sentencing, Movant raised several objections to the PSR, including an assertion regarding his cooperation with the authorities, a contention that the proffer agreement he entered into with the government was used against him, and an objection to the number of marijuana plants attributed to him and the calculation of a base offense level of 26. He also filed a

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sentencing memorandum highlighting the disparity between a sentence of 360 months and the sentences the court had imposed upon his co-defendants, the longest of which was 24 months. ECF No. 442.

At the sentencing held January 30, 2013, the court adopted the PSR without change and sentenced Movant to custody of the Bureau of Prisons ("BOP") for a term of imprisonment of 240 months, which reflected a downward variance on application of the 18 U.S.C. § 3553(a) factors. The court additionally imposed a term of supervised release of 8 years. ECF No. 454. The court entered judgment on January 31, 2013. ECF No. 456. Movant appealed the judgment on the basis of ineffective assistance of counsel, arguing that his attorney failed to investigate the nature of Movant's predicate offenses and failed to object to the career offender designation. The United States Court of Appeals for the Fourth Circuit affirmed the court's decision in an unpublished decision issued November 4, 2013.

On January 29, 2015, Movant filed a motion to vacate under 28 U.S.C. § 2255, asserting that his sentence was faulty under Apprendi v. New Jersey, 530 U.S. 466 (2000), on the basis that he had admitted guilt as to 89 plants but was held accountable over his objection to 100 plants, and sentenced to the higher statutory penalty. ECF No. 488. The government did not oppose the motion. The court granted the motion and ultimately granted Movant's request for a new trial. Movant subsequently pleaded guilty to the lesser included offense of Count 1, to wit, conspiracy to possess with intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1(B), and 846. ECF Nos. 536, 546. Movant filed a sentencing memorandum on the public docket, after unsuccessfully seeking leave to file it under seal. ECF No. 558. The USPO filed an amended PSR that in relevant part reflected the government's decision not to pursue the § 851 drug enhancement, which decision resulted in a reduction of Movant's

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Guidelines range to 262 to 327 months. This time, Movant objected to the PSR on the basis that the North Carolina conviction for second-degree kidnapping did not qualify as a predicate for the career offender designation, the 2003 Convictions did not qualify as predicates for the career offender designation, and he was entitled to a reduction of his offense level for acceptance of responsibility. The court again adopted the PSR without change and, on June 28, 2016, resentenced Movant to a term of incarceration of 240 months and a term of supervised release of 4 years. See ECF No. 559. Movant appealed. In a published decision, the Fourth Circuit affirmed the sentence, "despite sharing the district court's misgivings about imposing a very lengthy sentence for a marijuana offense," and reversed and remanded the matter "for the limited purpose of sealing [the] sentencing memorandum and requiring [Movant] to file a redacted version to preserve the privacy of his family." United States v. Harris, 890 F.3d 480, 483 (4th Cir. 2018).

On May 20, 2019, Movant filed the pending § 2255 motion through his attorney. ECF No. 589. The case was reassigned to the undersigned the following day. The government subsequently moved unopposed for a stay pending the Fourth Circuit's ruling in United States v. Norman, which motion the court granted. On January 31, 2020, the government filed a motion to dismiss or, in the alternative, motion for summary judgment in opposition to the § 2255 motion. ECF No. 598. Movant thereafter filed a combined reply in support of his motion and response to the government's motion. ECF No. 600.

DISCUSSION

A. Legal Standard

A federal prisoner in custody may challenge the fact or length of his detention by filing a motion pursuant to 28 U.S.C. § 2255. To receive relief under § 2255, a movant is required to

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prove by a preponderance of the evidence that his sentence was imposed in violation of the Constitution or laws of the United States; or that the court was without jurisdiction to impose such sentence; or that the sentence was in excess of the maximum authorized by law; or is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). If this showing is made, the court must "vacate and set the judgment aside" and "discharge the prisoner or resentence him or grant a new trial to correct the sentence as may appear appropriate." Id. at § 2255(b). If, on the other hand, "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the court may summarily deny the petition without holding a hearing. 28 U.S.C. § 2255(b) (providing that a hearing is not required on a § 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief); see Rule 4(b), Rules Governing Section 2255 Proceedings.2

B. Analysis

Movant seeks a correction of his sentence on several claims of ineffective assistance of counsel. He asserts two claims with respect to his trial attorney for the attorney's failure to challenge the North Carolina conviction for second degree kidnapping as a career offender predicate and for failure to object that the offense of conviction—violation of 21 U.S.C. § 846—is not a "controlled substance" offense within the meaning of the career offender enhancement. ECF No. 589-1 at 8-18. And he asserts that his appellate counsel was ineffective for failing to raise any substantive challenge to the career offender designation. Id. at 18. Finally, Movant argues that the instant offense "is not a controlled substance offense," under United States v. Whitley, 737 Fed. Appx. 147 (4th Cir. 2018). Id. at 20.

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1. Ineffective Assistance of Counsel

Criminal defendants are entitled to effective assistance of counsel. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 685 (1984). A lawyer "is constitutionally ineffective where her representation falls below objective standards of reasonableness and results in prejudice, meaning there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" United States v. Freeman, 992 F.3d 268, 274 (4th Cir. 2021) (quoting Strickland, 466 U.S. at 687-88, 694); Hinton v. Alabama, 571 U.S. 263, 275 (2014). "A finding of ineffective assistance ultimately will result when counsel's conduct 'so undermined the proper functioning of the adversarial process' that the proceedings below 'cannot be relied on as having produced a just result.'" United States v. Carthorne, 878 F.3d 458, 465 (4th Cir. 2017) (quoting Strickland, 466 U.S. at 686). Notably, however, "judicial scrutiny of counsel's performance...

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