US v. David Harris, No. 08-5146 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5146 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID M. HARRIS, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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, On direct appeal, this court but vacated his sentence and remanded for resentencing, in accordance with United States v. Booker, 543 U.S. 220 (2005). See United States v. Harris, F. App x 262 (4th Cir. 2007) (Nos. 03-4297/4298). 215 On remand, the district court sentenced Harris to 211 months imprisonment. Harris now appeals. Counsel California, there are issues 386 no of considered has U.S. filed 738 in in supplemental the for to that, appeal, history and in but convictions Anders his v. view, raising the were properly whether Harris In addition to restating the claims by Anders briefs pursuant stating prior criminal sentence was reasonable. counsel issues certain Harris brief (1967), meritorious whether a that brief, Harris the district 2 claims court in pro abused se its discretion in denying his motion for another continuance and failed to explain further moves grounds its for pertaining reasons remand to for to his the the chosen district convictions. declined to file a response. sentence. court The on He various Government has Finding no reversible error, we affirm. 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. reasonableness of We Id. the then sentence consider imposed. the Id. substantive Substantive 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 468, 473 (4th Cir. 2007) (quoting Gall, 522 U.S. at 51). If the sentence is within the guidelines range, we apply a presumption of reasonableness. (4th Cir. calculated 2008) United States v. Abu Ali, 528 F.3d 210, 261 ( [A] guidelines sentence range is 3 located within presumptively a correctly 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 points in regard, his he objects criminal specifically history for: (1) to the a 1984 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. United States v. Allen, 446 F.3d 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 * 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 under to the this item defendant s eighteenth only resulted if it birthday from an is adult conviction. ); see also USSG § 4A1.2(d)(1) ( If the defendant was convicted imprisonment as an exceeding adult one and year and received one a month, sentence add 3 of 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 sentence. in open court the reasons for the 211-month See United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). In appropriate, determining the district that a court 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 on presumption. 379 (4th showing appeal, and Harris has not rebutted that See United States v. Montes-Pineda, 445 F.3d 375, Cir. 2006) sentence (stating is § 3553(a) factors). presumption unreasonable when may be measured rebutted against by the 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 affirm the district court s judgment. pending motions to remand, to appeal. therefore We further deny Harris substitute Dismiss for Extreme Appellate Delay. We counsel, and To 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 contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 7
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