Harris v. United States of America (INMATE 3)

Filing 4

OPINION. Signed by Honorable Judge Myron H. Thompson on 5/12/16. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

TIOMBE HARRIS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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CIVIL ACTION NO.
3:16cv333-MHT
(WO)

OPINION
Pursuant

to

28

U.S.C.

§ 2255,

petitioner

Tiombe

Harris, a federal prisoner, filed this lawsuit seeking
habeas relief.

Specifically, he seeks to vacate, set

aside, or correct the amended sentence this court imposed
pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to
the United States Sentencing Guidelines, because this
court based his amended sentence on the clearly erroneous
factual finding that the release date projected by the
Bureau of Prisons did not already factor in good-time
credit he had accrued (and might still accrue).
Having conducted a hearing on this motion on May 10,
2016, and based on the representations made in open court

during

that

hearing

and

in

the

parties’

subsequent

filings, the court--and the government--agree with Harris
(1) that

his

amended

sentence

was

based

on

false

information, (2) that habeas relief is warranted, and
(3) that his sentence should be reduced further.1
On January 15, 2016, this court reduced Harris’s
sentence on the first count of conviction to 46 months.2
In calculating this amended sentence, the court decided
to impose a sentence “comparably less” than the amended
guideline range, pursuant to U.S.S.G. § 1B1.10(b)(2)(B),
in

order

to

account

for

the

substantial-assistance

departure Harris received during his original sentencing.
In determining how to calculate a comparably lessened
sentence, the court discussed with counsel whether it
should

employ

the

‘level-wise’

computation

method

1. The government’s response to the petition states
that it “has no objection to the relief sought” therein.
See Resp. to Pet. (doc. no. 3) at 1.
2. Harris also received a consecutive sentence of
60 months on a separate count.
Amendment 782 had no
effect on the sentence for this second count.
2

proposed by the court’s Retroactivity Screening Panel or
the ‘percentage-wise’ computation method discussed in
U.S.S.G. § 1B1.10(c) cmt. n. 4(B).

The court noted that

the level-wise method would result in an amended sentence
of 46 months and that the percentage-wise method would
result in an amended sentence of 36 months.
The court was advised, and thus mistakenly believed,
that “the practical difference in the resulting reduction
[would] be minimal,” because Harris’s projected release
date did not reflect his accrual of good-time credit and
thus that even the more limited reduction would result
in very prompt release.

See Op. and Order, United States

v. Harris, 3:09-cr-112-MHT, 2016 WL 184427, at *1 n.*
(M.D. Ala. Jan. 15, 2016) (Thompson, J.).

The court

opted to grant the more limited reduction to 46 months,
in order to “increase[e] the likelihood that [Harris] can
participate in pre-release programming.”

Id.; see also

United States v. Maiello, 805 F.3d 992 (11th Cir. 2015)
(holding that although Tapia v. United States, 564 U.S.
319 (2011), prohibits sentencing courts from “imposing
3

or lengthening” a criminal sentence in order to promote
rehabilitation,

this

prohibition

is

inapplicable

to

sentence reduction proceedings pursuant to 18 U.S.C.
§ 3582(c)(2)).
However, the court has since been made aware that
the release dates projected by the Federal Bureau of
Prisons already reflect all of the good-time credit a
prisoner could possibly accrue over the course of his
entire sentence.

Harris’s new projected release date is,

thus, not imminent, but rather almost a year away.

Had

the court known this, it would have granted Harris more
of a reduction, to an amended sentence of 44 months,
which would be sufficiently lengthy to ensure that he
will spend a meaningful period of time in a halfway house.
The

court’s

decision

to

employ

the

level-wise

computation method was not, in itself, error.

See United

States v. Marroquin-Medina, -- F.3d --, 2016 WL 1273021,
at *6-*7 (11th Cir. Apr. 1, 2016) (permitting district
courts

to

employ

either

method).

However,

as

the

Eleventh Circuit held in Shukwit v. United States, 973
4

F.2d 903, 904 (11th Cir. 1992), “due process protects the
right

not

to

be

information,”
sentenced

on

and
the

sentenced
so

on

the

Harris’s

basis

of

basis

“claim

false

of

that

information

false

he

was

...

is

cognizable in this petition.”
As the Third Circuit explained in greater detail in
United States v. Eakman, 378 F.3d 294, 301 (3d Cir. 2004),
habeas relief is available under the “otherwise subject
to collateral attack” prong of § 2255 when “(1) the
district court made an objectively ascertainable error
(one that does not require courts to probe the mind of
the

sentencing

materially
appropriate

judge)

relied

on

sentence,”

and
that

(2)

the

error

in

because

such

district

court

determining
an

error

is

the
“of

constitutional magnitude.”
In fact, the error that Eakman found to be cognizable
on habeas review is quite similar to the error this court
committed.

In Eakman, the petitioner contended that the

district judge had based his sentencing decision on the
mistaken belief that the Federal Bureau of Prisons had
5

the

legal

authority

to

community-confinement

place

center,

the

defendant

as

the

in

judge

a
had

recommended, when in fact it had no such authority.

The

case was remanded in order to determine whether the
district
belief;

judge
if

so,

had
the

in

writ

petitioner resentenced.
reducing

Harris’s

fact

relied

was

to

on

be

that

mistaken

granted

and

the

Here, the text of the opinion

sentence

and

the

memory

of

the

undersigned both confirm reliance.
The amended sentence this court imposed on Harris
was

explicitly

information.

predicated
The

court

on

will

objectively
therefore

grant

false
his

petition, vacate his sentence, and resentence him to
44 months on the first count of conviction.
An appropriate judgment will be entered.
DONE, this the 12th day of May, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE