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United States v. Harris

United States District Court, Tenth Circuit

May 24, 2013

United States of America, Plaintiff,
v.
Aaron Harris, Defendant.

MEMORANDUM & ORDER

JOHN W. LUNGSTRUM, District Judge.

On September 28, 2007, defendant Aaron Harris pled guilty to conspiracy to distribute or possess with intent to distribute more than fifty grams of cocaine base. The factual basis of the plea agreement provided that Mr. Harris had admitted to agents after his arrest "that he had been distributing cocaine base for several years" and that although he did not know the total amount he had distributed, he "estimated it to be more than one kilogram." In the petition to enter plea of guilty and order entering plea, Mr. Harris again admitted that he distributed "approx. 1 kg of cocaine base." The presentence investigation report (PSR) filed with the court attributed more than 1.5 kilograms of cocaine base to Mr. Harris, triggering a base offense level of 36. Mr. Harris objected to that amount, contending that less than 1.5 kilograms of cocaine base should be attributed to him. At sentencing, the court sustained Mr. Harris's objection without opposition from the government such that Mr. Harris's base offense level was 34.[1]

Mr. Harris now moves the court pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 2255 for a reduction in his sentence based on Amendment 750 and his counsel's failure to stipulate to or request that the court determine a fixed quantity of cocaine base attributable to Mr. Harris so that Mr. Harris could avail himself of prospective amendments to the drug quantity tables. He contends that the court should now attribute less than 840 grams of cocaine base to Mr. Harris and adjust his base offense level to 32 based on the revised drug quantity tables. As explained below, the motion is denied to the extent it is based on 18 U.S.C. § 3582(c)(2) and is dismissed to the extent it is based on 28 U.S.C. § 2255.[2]

As an initial matter, the government requests that the court enforce the "waiver of collateral attack" executed by Mr. Harris in his plea agreement, as it did when Mr. Harris previously moved for a reduced sentence under Amendment 709. Amendment 709, however, took effect prior to the date of Mr. Harris's sentencing. In contrast, Amendment 750 took effect more than 3 years after Mr. Harris's sentencing. The court, then, declines to find that Mr. Harris has waived his right to file the motion at issue here on the grounds that Mr. Harris could not knowingly and voluntarily waive his right to seek a sentence reduction under Amendment 750, which was not promulgated by the Sentencing Commission until 2011. United States v. St. James, 2013 WL 1345152, at *3 (N.D. Cal. Apr. 2, 2013); United States v. Penn, 2012 WL 3017865, at *3-4 (W.D. July 23, 2012) (a motion to modify a sentence pursuant to 3582(c) based on a retroactive change in the Guidelines is not a "collateral attack" on a conviction or sentence as traditionally understood; finding no waiver of right to seek reduction of sentence).

That being said, to the extent Mr. Harris's motion is made pursuant to 28 U.S.C. § 2255, the motion is dismissed as untimely. A defendant's § 2255 motion is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which establishes a one-year limitations period for federal prisoners seeking habeas relief. Under 28 U.S.C. § 2255(f), a criminal defendant may file a habeas petition one year from the latest of four circumstances:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f). Mr. Harris does not contend that subsections (2), (3) or (4) are applicable to him. As such, the one-year limitations period began to run on the date on which Mr. Harris's judgment of conviction became final.

Where a defendant files an appeal, his conviction becomes final "when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction." Clay v. United States, 537 U.S. 522, 525 (2003). Where a defendant does not file an appeal, his conviction becomes final on the date when the time for filing an appeal expires. United States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006). A criminal defendant must file a notice of appeal within fourteen days of judgment. Fed. R. App. P. 4(b)(1)(A).

Here, judgment was entered against Mr. Harris on May 5, 2008. He did not file a direct appeal. Thus, his judgment became final on May 19, 2008-fourteen days after entry of judgment. Mr. Harris's motion was filed in March - long after the close of the one-year limitations period. He is now time-barred from filing a habeas petition in the absence of showing justification for equitable tolling of the one-year limitations period. Even assuming that Mr. Harris's claim were equitably tolled until Amendment 750 became retroactive, his § 2255 motion is nonetheless untimely as it was filed more than one year after the date the amendment became retroactive. Thus, Mr. Harris's § 2255 petition is dismissed as untimely.

The court turns, then, to consider whether Mr. Harris is eligible under § 3582(c)(2) for a reduction in his sentence in light of the modified guideline ranges for crack cocaine offenses under Amendment 750. Federal courts, in general, lack jurisdiction to reduce a term of imprisonment once it has been imposed. Freeman v. United States, ___ U.S. ___, 131 S.Ct. 2685, 2690 (2011). "A district court does not have inherent authority to modify a previously imposed sentence; it may do so only pursuant to statutory authorization." United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997). Under limited circumstances, modification of a sentence is possible under 18 U.S.C. § 3582(c). That provision states that "a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission" may be eligible for a reduction, "if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2).

In one such statement, the Commission has specified that "[a] reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if... [a]n amendment listed in subsection (c) does not have the effect of lowering the defendant's applicable guideline range." U.S.S.G. § ...


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