United States v. Harden

• Decision Date: 07 August 2017
• Docket Number: No. 16-1227,16-1227
• Citation: 866 F.3d 768
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stacy Lee HARDEN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

866 F.3d 768

UNITED STATES of America, Plaintiff-Appellee,

v.Stacy Lee HARDEN, Jr., Defendant-Appellant.

No. 16-1227

United States Court of Appeals, Seventh Circuit.

Argued April 10, 2017

Decided August 7, 2017

Stephen B. Clark, Attorney, Office of the United States Attorney, Criminal Division, Daniel Kapsak, Attorney, Office of the United States Attorney, Civil Division, Fairview Heights, IL, for Plaintiff–Appellee.

Peter W. Henderson, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

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 a determination by the court that the defendant has complied with this requirement.

[emphasis added]

The Probation Office in the Presentence Investigation Report (PSR) concluded that Harden was ineligible for the two- level safety valve reduction because he could not demonstrate that he did not use violence or the threat of violence as set forth in § 3553(f)(2). The district court agreed with that assessment, concluding that the high-speed flight through the residential area resulting in the U-turn and the collision with the police vehicle constituted an act of violence. We review the district court's fact findings regarding the safety valve provision of the Guidelines for clear error, and the interpretation of the safety valve provision de novo . United States v. Alvarado , 326 F.3d 857, 860 (7th Cir. 2003).

The Guidelines do not define the terms "use of violence or the threat of violence," and Harden urges that the term "use" requires "active employment," and that a defendant uses violence only when he "actively" employs force against another that is capable of causing physical pain or injury. Harden's definition does not veer far from the common conception of violence used by the courts in other contexts, albeit with the inclusion of the modifier "actively" based on his interpretation of the word "use" as a term of art. The problem, however, inheres in Harden's application of that definition, under which the standard is met only if Harden purposefully used his vehicle to physically strike the officers. Harden asserts that he did not "actively" employ the vehicle as a weapon to inflict force capable of causing pain because he did not intentionally hit anyone and thus there is no evidence that he used the car as a weapon. Under his restrictive interpretation of the terms, only the active employment of violent physical force against another person would suffice. Accordingly, he stated in his brief and at oral argument that if a defendant purposefully slammed on his brakes while being closely pursued by the police, resulting in a collision, that would not satisfy the requirement that he actively employed violent physical force; he reasons that although the element of force might be present in those circumstances, he could not be said to have used violence because he would instead be the recipient of the violence. Finally, Harden argues that his conduct did not constitute a threat of violence. He asserts that there is no threat of violence because his purpose was simply to escape and not to inflict violence on others, and that the reference to "threat of violence" in the safety valve provision should be limited to a communicated intent to inflict harm rather than including actions that place persons in a position of danger.

We decline to interpret "use of violence or threat of violence" so narrowly, as it is contrary to a common understanding of what constitutes violent conduct, inconsistent with the interpretation of those terms in other contexts, and inappropriate given the context of the safety valve provision. That safety valve provision allows the district court to impose a sentence below the statutory minimum in cases in which the listed characteristics are met and which take the case out of the ordinary run of cases; a tortured parsing of the language to include only a very narrow band of the spectrum of conduct that is commonly considered "violent" is particularly inappropriate in the context of authorizing a deviation below the statutory minimum. And Harden's proposed definition, at least as he would apply it, would except a range of the type of conduct that would undeniably be considered violent conduct by any straightforward reading of that term. For instance, the distinction between Harden causing a collision by sudden deceleration or by rapid acceleration, with only the latter constituting violent conduct, is an interpretation that defies a common-sense understanding of the term. The purposeful abrupt braking with the police in close pursuit would cause a collision just as surely as would the acceleration into the police vehicle, and the term "use of violence" cannot be reasonably interpreted to draw such a tortured distinction based on a vague concept of active use of physical force. Similarly, at oral argument, when presented with the scenario of a defendant pointing a gun and firing in the direction of the police but missing, Harden's attorney declared that the conduct would be a threat of violence rather than characterize it as a use of violence. That defies common understanding. Although displaying a gun might in common parlance be considered a threat of violence, a person actually shooting a gun at...