US v. David Harris

Filing 920100525

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5146

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID M. HARRIS, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Benson Everett Legg, District Judge. (1:01-cr-00115-BEL-3)

Submitted:

April 15, 2010

Decided:

May 25, 2010

Before TRAXLER, Chief Judge, and GREGORY and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore, Maryland, for Appellant. Michael Joseph Leotta, Christopher John Romano, Assistant United States Attorneys, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: A jury convicted David M. Harris of five offenses: (1) conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine; (2) possession with intent to distribute five hundred grams or more of cocaine; (3) possession of a firearm in furtherance of a drug trafficking crime; (4) possession of a firearm by a convicted felon; and (5) possession of ammunition by a convicted felon. Sentenced in accordance

with the then-mandatory sentencing guidelines, Harris received a total of 270 months' imprisonment. affirmed Harris' convictions, but On direct appeal, this court vacated his sentence and

remanded for resentencing, in accordance with United States v. Booker, 543 U.S. 220 (2005). See United States v. Harris, 215

F. App'x 262 (4th Cir. 2007) (Nos. 03-4297/4298).

On remand,

the district court sentenced Harris to 211 months' imprisonment. Harris now appeals. Counsel California, there issues are of 386 no has U.S. filed 738 a brief pursuant that, but to in Anders his v.

(1967), issues

stating for

view, the

meritorious

appeal,

raising

whether in

certain

prior

convictions and

were whether

properly Harris'

considered

Harris'

criminal

history

sentence was reasonable. counsel in the Anders

In addition to restating the claims by brief, the 2 Harris district claims court in pro se its

supplemental

briefs

that

abused

discretion in denying his motion for another continuance and failed further grounds to explain for its reasons to for the the chosen sentence. on He

moves

remand to his

district

court

various has

pertaining

convictions.

The

Government

declined to file a response. affirm.

Finding no reversible error, we

We review a sentence for reasonableness, applying an abuse of discretion standard. 38, 51 (2007). Gall v. United States, 552 U.S.

In so doing, we first examine the sentence for

"significant procedural error," including: "failing to calculate (or improperly calculating) the [g]uidelines range, treating the [g]uidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence." of Id. the We "then consider the substantive "Substantive

reasonableness

sentence

imposed."

Id.

reasonableness review entails taking into account the `totality of the circumstances, including the extent of any variance from the [g]uidelines range.'" United States v. Pauley, 511 F.3d If the

468, 473 (4th Cir. 2007) (quoting Gall, 522 U.S. at 51).

sentence is within the guidelines range, we apply a presumption of reasonableness. (4th Cir. 2008) United States v. Abu Ali, 528 F.3d 210, 261 ("[A] sentence range is 3 located within a correctly

calculated

guidelines

presumptively

reasonable."),

cert. denied, 129 S. Ct. 1312 (2009); see Rita v. United States, 551 U.S. 338, 347 (2007) (upholding presumption of

reasonableness for within-guidelines sentence). Harris first contends that the district court erred in calculating his criminal history category under the sentencing guidelines. addition of In this in regard, his he objects specifically for: (1) to a the 1984

points

criminal

history

arrest and resulting convictions for Sexual Offense and Battery; and (2) a 1996 conviction for possession of a firearm in a vehicle. * In considering the district court's application of

the guidelines, we review factual findings for clear error and legal conclusions de novo. 522, 527 (4th Cir. 2006). Because Harris was convicted of Sexual Offense as an adult, he was sentenced on the Sexual Offense conviction to more than thirteen months, his sentence was imposed less than fifteen years prior to the commencement of the subject offense and his incarceration extended into the fifteen-year period prior to the United States v. Allen, 446 F.3d

Although counsel challenges the prior conviction for handgun possession on the ground that the Government failed to prove that prior conviction belonged to Harris, a closer review of the pleadings and transcripts of the proceedings makes clear that counsel objected on this basis to the CDS possession conviction, and not the handgun possession conviction. We find no basis in the record to apply the argument to the handgun possession conviction.

*

4

commencement of the subject offense, we find three points were properly added to Harris' criminal history category based on this prior conviction. See U.S. Sentencing Guidelines Manual

§ 4A1.1, comment. (n.1) ("Three points are added for each prior sentence of imprisonment exceeding one year and one

month . . . . A sentence imposed more than fifteen years prior to the defendant's commencement of the instant offense is not counted unless the defendant's incarceration extended into this fifteen year period . . . . A sentence imposed for an offense committed counted prior to the item defendant's only if it eighteenth resulted birthday an is

under

this

from

adult

conviction."); see also USSG § 4A1.2(d)(1) ("If the defendant was convicted as an adult one year and and received one a sentence add 3 of

imprisonment

exceeding

month,

points

under § 4A1.1(a) for each such sentence."). Harris next argues, as he did below, that his

conviction for CDS possession was also improperly assessed one point in the calculation of his criminal history. He contends

the Government failed to prove he was the person convicted of that offense. The district court found by a preponderance of

the evidence that Harris was the individual who received the conviction for possession of CDS in 1996. this factual finding. We find no error in

See generally United States v. Love, 134

F.3d 595, 606 (4th Cir. 1998) (quoting United States v. Terry, 5

916 F.2d 157, 162 (4th Cir. 1990)) ("A mere objection to the finding in the presentence report is not sufficient . . . . Without an affirmative showing the information is inaccurate, the court is `free to adopt the findings of the [presentence report] without more specific inquiry or explanation.'"). Last, Harris argues that his sentence was unreasonable under the guidelines and the 18 U.S.C. § 3553(a) factors. The

district court here followed the necessary procedural steps in sentencing Harris, appropriately treating the sentencing

guidelines as advisory, properly calculating and considering the applicable guidelines range, performing an individualized

assessment of the § 3553(a) factors to the facts of the case, and stating in open court the reasons for the 211-month

sentence. Cir. 2009).

See United States v. Carter, 564 F.3d 325, 328 (4th

In appropriate,

determining the district

that court

a

211-month considered

sentence the §

was

3553(a)

factors, explicitly noting Harris' offense was "serious;" he was a part of an "organized drug ring;" "[he] recruited others;" and he "has a serious criminal record." The district court stressed

that a 211-month sentence protects the public, deters Harris, and is sufficient in light of the fact that Harris has taken college courses, has a work record, and has a son he cares about. Harris' within-Guidelines 6 sentence is presumptively

reasonable presumption. 379 (4th

on

appeal,

and

Harris

has

not

rebutted

that

See United States v. Montes-Pineda, 445 F.3d 375, 2006) is (stating presumption when may be rebutted against by the

Cir.

showing

sentence

unreasonable

measured

§ 3553(a) factors).

We therefore find no abuse of discretion in

imposing the chosen sentence. In accordance with Anders, we have reviewed the entire record in this case and Harris' pro se supplemental briefs and have found no meritorious issues for appeal. We therefore

affirm the district court's judgment. pending motions to remand, to

We further deny Harris' counsel, and "To

substitute

Dismiss for Extreme Appellate Delay."

This court requires that

counsel inform Harris, in writing, of the right to petition the Supreme Court of the United States for further review. If

Harris requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation.

Counsel's motion must state that a copy thereof was served on Harris. legal before We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. AFFIRMED

7