United States v. Harden, 080717 FED7, 16-1227

Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
Judge Panel:Before Easterbrook, Rovner, and Sykes, Circuit Judges.
Opinion Judge:ROVNER, Circuit Judge.
Party Name:United States of America, Plaintiff-Appellee, v. Stacy Lee Harden, Jr., Defendant-Appellant.
Case Date:August 07, 2017
Docket Nº:16-1227
 
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United States of America, Plaintiff-Appellee,

v.

Stacy Lee Harden, Jr., Defendant-Appellant.

No. 16-1227

United States Court of Appeals, Seventh Circuit

August 7, 2017

          Argued April 10, 2017

         Appeal from the United States District Court for the Southern District of Illinois. No. 3:ll-cr-30238-DRH-l - David R. Herndon, Judge.

          Before Easterbrook, Rovner, and Sykes, Circuit Judges.

          ROVNER, Circuit Judge.

         Stacy Lee Harden, Jr., pled guilty to possessing with intent to distribute five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). The district court sentenced him to the mandatory minimum imposed by the statute of 10 years' imprisonment and 5 years' supervised release. In imposing that sentence, the court rejected Harden's argument that the "safety valve" provision in 18 U.S.C. § ; 3553(f) applied to him, which would allow the court to impose a sentence beneath the mandatory minimums. Harden now appeals that determination to this court.

         In October 2010, the Drug Enforcement Administration received information that Harden had transported a large quantity of cocaine from Dallas to the St. Louis area for distribution. After observing him leave a residence in Swansea, Illinois, with a plastic shopping bag and then enter and leave another residence carrying a black bag, they followed him and executed a traffic stop of his vehicle. As they approached his vehicle, Harden sped away at a high rate of speed, traveling through a residential neighborhood in the course of that flight. The flight took place at around 5:30 pm on a Friday. The district court found that he attained speeds that were at least 21 miles per hour (mph) over the 25 mph speed limit which was the requirement to constitute Aggravated Fleeing and Eluding under Illinois state law. Based on the testimony of the officers who pursued Harden, as confirmed by the video evidence of the chase from the officers' cars which revealed the speed as they pursued Harden, the district court also found that the officers pursuing him reached speeds of 65 mph and did not appear to gain ground on Harden, thus indicating that Harden's actual speed neared 65 mph in that 25 mph residential zone. During that time, he threw nearly two kilograms of cocaine out of the vehicle that subsequently were recovered by law enforcement. During the effort to elude his pursuers, Harden turned into a parking lot and made a U-turn, resulting in a collision when the agent's vehicle in pursuit struck Harden's vehicle. The district court credited the officers' testimony over that of Harden that Harden pulled into the lot to avoid a traffic backup and made a sudden U-turn in an apparent attempt to continue his flight. After the collision, the officers pulled Harden from the vehicle, which continued to move forward as his foot released the brake. Harden was uncooperative with the police as he was arrested at that time.

         Harden filed an earlier appeal in this case, and we granted his request to vacate his guilty plea as improperly taken by a magistrate judge. United States v. Harden, 758 F.3d 886 (7th Cir. 2014). On remand, he again entered a guilty plea, but without a plea agreement. With a total offense level of 29 and criminal history category I, and a reduction for acceptance of responsibility, the Guidelines range was 87-108 months but with a statutory minimum of 10 years which the district court imposed.

         Harden raises only one challenge to his sentence-that the court erred in determining that he was not eligible for the "safety valve" in § 3553(f). Section 3553(f) provides that for certain offenses including the one here under 21 U.S.C. § 841: the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that-

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude...

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