Harris v. United States of America

Filing 30

OPINION AND ORDER granting reconsideration and denying 14 Motion for Certificate of Appealability; denying 19 Motion for Leave to Appeal in forma pauperis. The Clerk shall forward a copy of this Opinion and Order to the Eleventh Circuit. Signed by Judge John E. Steele on 1/3/2019. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JERMARL HARRIS,
Petitioner,
v.

Case No: 2:17-cv-27-FtM-29MRM
Case No. 2:15-CR-56-FTM-29MRM

UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
This matter comes before the Court on petitioner's Motion for
Certificate of Appealability (Doc. #14) filed on June 11, 2018,
and construed as a motion for reconsideration.

The government

filed a Response in Opposition (Doc. #25) on August 8, 2018, and
a Supplemental Response (Doc. #29) on August 31, 2018.

For the

reasons set forth below, the Court will grant reconsideration, but
after

such

reconsideration

continues

to

deny

petitioner’s

requested relief.
I.

Procedural History

Petitioner was charged in a one-count Indictment (Cr. Doc.
#1) with conspiracy to possess with intent to distribute and
distribution of marijuana between in or about 2010, and in or about
2014.

Petitioner pled guilty to this offense, and on March 22,

2016, the Court sentenced petitioner to a term of 46 months
imprisonment.

(Cr. Doc. #46.)

No direct appeal was filed, but petitioner filed a timely
Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Case No. 2:17-cv-27-FTM29MRM, Cv. Doc. #1; Cr. Doc. #49) seeking relief under 28 U.S.C.
§ 2255.

On June 1, 2018, the Court dismissed petitioner’s motion,

finding, inter alia, that relief was not available under § 5G1.3
of the United States Sentencing Guidelines because this claim
concerned the execution of the Court’s recommendation for credit,
not the length of the sentence.

(Cv. Doc. #12, pp. 5-6.)

A

certificate of appealability was denied within the Opinion and
Order (Cv. Doc. #12), and Judgment (Cv. Doc. #13) was entered on
June 1, 2018.
On June 11, 2018, petitioner filed a Notice of Appeal (Cv.
Doc. #15) from the Opinion and Order and the Judgment, and a
separate motion for certificate of appealability (Cv. Doc. #14)
which is currently before the Court.

Upon review, the Court noted

attachments indicating possible exhaustion of remedies within the
Bureau of Prisons, and the Regional Director’s response that
petitioner could seek relief in the trial court under Sentencing
Guidelines § 5G1.3.

As a result, the Court construed the motion

as a motion for reconsideration based on new evidence and directed

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the government to file a response.

(Cv. Doc. #17.)

Finding that

the government Response did not specifically address these issues,
the Court directed the filing of a supplemental response.
Doc. #26.)

(Cv.

In the Supplement (Cv. Doc. # 29), the government

argues that Sentencing Guidelines § 5G1.3 does not apply because
the state sentences expired on November 14, 2015, and the federal
sentence was not imposed until after the expiration of the state
sentences.
II.

Analysis

A. Petitioner’s Prior State Incarceration
The conspiracy to which petitioner pled guilty lasted from
about 2010 through about 2014.

In computing petitioner’s criminal

history, the Presentence Report (Cr. Doc. #41) noted two state
court

marijuana

convictions

for

which

concurrent terms of imprisonment.

petitioner

had

served

This conduct was considered

part of the federal offense in this case, and so no criminal
history points were added.

(Id. at ¶ 76-77.)

In the first state

case, on November 19, 2013, petitioner pled nolo contendere to
possession of marijuana over 20 grams and use or possession of
drug paraphernalia.

Petitioner was sentenced to 18 months of

probation on the first count and 148 days in jail, with credit for
time served, on the second count.

(Id. at ¶ 76.)

In 2014, in the

second state case, petitioner violated his probation by possessing

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marijuana, and was ultimately sentenced to 25 months imprisonment
with credit for 148 times served.

(Id.)

The conduct underlying

the probation violation was also charged as a separate case, to
which petitioner pled nolo contendere and was sentenced to a
concurrent

term

of

25

months

imprisonment.

(Id.

at

¶

77.)

Petitioner was released from state prison in both cases on November
14, 2015.

(Id. at ¶¶ 76, 77.)

B. Petitioner’s Federal Indictment and Sentence
On April 29, 2015, a federal grand jury in Fort Myers returned
the Indictment (Cr. Doc. #1) charging petitioner with conspiracy
to possess with intent to distribute and distribution of marijuana.
Petitioner was arrested pursuant to a writ of habeas corpus ad
prosequendum (Cr. Doc. #4) on July 29, 2015, at his place of
incarceration in Orlando, Florida (Cr. Doc. #14).

An Order of

Detention Pending Trial (Doc. #15) was issued on August 13, 2015.
(Cr. Doc. #15.)

On November 14, 2015, petitioner was released

from state prison.

(Cr. Doc. #41, ¶ 77.)

Petitioner pled guilty to this federal offense, and on March
22, 2016, the Court sentenced petitioner to a term of 46 months
imprisonment.

(Cr. Doc. #46.)

The Criminal Judgment stated:

“This term is to be concurrent but not coterminous with the term
of imprisonment in Circuit Court Case Numbers 13CF877 and 14CF300,
beginning 2/7/14.

Alternatively, pursuant to Barden v. Keohane,

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921 F.2d 476 (3d Cir. 1990), the Court recommends that the Bureau
of

Prisons

retroactively

designate

the

Florida

facilities

as

defendant's location of federal imprisonment effective 2/7/14.”
(Cr. Doc. #46, p. 2.)
C. Claim of Credit for Time Served
Petitioner asserts that while he was not eligible for credit
for the state sentences from the Bureau of Prisons under 18 U.S.C.
§ 3585, the sentencing court should have adjusted his sentence
under

U.S.

Sentencing

Guidelines

Manual

§

5G1.3(b),

attorney should have objected to the failure to do so.

and

his

Petitioner

seeks to be re-sentences with such an adjustment.
The pertinent portion of the Sentencing Guidelines provides:
If . . . a term of imprisonment resulted from
another offense that is relevant conduct to
the instant offense of conviction . . . the
sentence for the instant offense shall be
imposed as follows:
(1) the court shall adjust the sentence for
any period of imprisonment already served on
the undischarged term of imprisonment if the
court
determines
that
such
period
of
imprisonment will not be credited to the
federal sentence by the Bureau of Prisons; and
(2) the sentence for the instant offense shall
be imposed to run concurrently to the
undischarged term of imprisonment.
U.S.S.G. § 5G1.3(b)(1).

“By its terms, the guideline requires the

court to “adjust” a defendant's sentence when all four conditions
it sets forth are satisfied: (1) the defendant has time spent in

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custody (“prior custody”) other than for the convictions for which
he is being sentenced; (2) that time served has been for relevant
conduct that is accounted for by the sentence imposed for the
federal crime of conviction under consideration at the sentencing;
(3) the Bureau of Prisons will not itself credit the time spent in
prior

custody;

and

(4)

the

defendant

remaining on his prior custody”.
Murillo,

852

F.3d

1329,

1337–39

has

undischarged

time

United States v. Gonzalez(11th

Cir.

2017).

“Section

5G1.3(b)'s language renders the provision mandatory; a court must
adjust a prisoner's sentence when § 5G1.3(b)'s requirements are
satisfied.”

Id.

Here, the Presentence Report recognizes that both of the prior
sentences were completed prior to the date of petitioner’s federal
sentencing.

Thus, the record establishes that it is undisputed

that petitioner cannot satisfy the fourth requirement of § 5G1.3(b)
– that he has undischarged time remaining on his prior custody.
Accordingly, it is hereby
ORDERED:
1. Petitioner's Motion for Certificate of Appealability (Doc.
#14),

construed

GRANTED.

as

After

a

motion

for

reconsideration,

reconsideration,
the

certificate of appealability remains denied.

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motion

is
for

2. As

petitioner

has

been

denied

a

certificate

of

appealability, the Application (Doc. #19) to proceed in
forma pauperis on appeal is DENIED.
3. The Clerk shall forward a copy of this Opinion and Order
to the Eleventh Circuit forthwith.
DONE and ORDERED at Fort Myers, Florida, this
January, 2019.

Copies:
USCA
Petitioner
AUSA

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3rd

day of