United States District Court, D. Vermont
REPORT AND RECOMMENDATION (DOCS. 106, 108)
John
M. Conroy, United States Magistrate Judge.
Defendant
Kevin Harris, proceeding pro se, moves under 28
U.S.C. § 2255 to vacate, set aside, or correct his
sentence. (Doc. 106.) On April 12, 2013, a federal jury found
Harris guilty on five of the seven counts in the Superseding
Indictment: Count One, conspiring to distribute heroin and
over 28 grams of cocaine base in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), 846; Counts Three through
Five, knowingly and intentionally distributing either heroin
or cocaine base on August 9, September 20, and September 22,
2011, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C), 18 U.S.C. § 2; and Count Six, knowingly and
intentionally possessing heroin and cocaine base with the
intent to distribute those substances in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(C), 18 U.S.C. § 2.
(Docs. 20, 63.) On January 30, 2014, Harris was sentenced to
151 months on the five counts, with each sentence to run
concurrently. (Docs. 88, 90.) Following a retroactive
amendment to the Sentencing Guidelines, on August 18, 2015,
this Court resentenced Harris to 135 months on the five
counts. (Doc. 103.)
Harris
now contends that his sentence should be vacated based on two
grounds: (1) his defense counsel, Attorney Thomas Sherrer,
provided ineffective assistance of counsel by failing to seek
dismissal of the Superseding Indictment for violations of the
Speedy Trial Act (STA), 18 U.S.C. §§ 3161-3174, and
for failing to adequately challenge other facets of the
prosecution, as well as evidence admitted at trial and at
sentencing; and (2), the Court erred when it imposed
Harris's original sentence and when it resentenced
Harris. (Doc. 106.) The government opposes Harris's
Motion, arguing that his claims are barred both by the
one-year statute of limitations set forth in 28 U.S.C. §
2255 and by other procedural requirements. (Docs. 108, 116.)
The government further contends that, even if Harris's
claims are not procedurally barred, they lack merit.
(Id.)
Concluding
that his claims are procedurally barred and that they are
otherwise meritless, I recommend that Harris's §
2255 Motion be DENIED.
Factual
and Procedural Background
I.
Charge and Arraignment
On
April 19, 2012, the federal grand jury returned an Indictment
charging Harris, also known as “Black, ” with six
counts relating to a conspiracy to distribute cocaine base
and heroin. (Doc. 1.) Count One of the Indictment charged
Harris with conspiring to distribute heroin and over 28 grams
of cocaine base in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B), 846. (Doc. 1 at 1.) Counts Two through
Five charged Harris with knowingly and intentionally
distributing either heroin or cocaine base on August 9,
September 20 (two counts), and September 22, 2011, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and
18 U.S.C. § 2. (Doc. 1 at 2-5.) Finally, Count Six
charged Harris with knowingly and intentionally possessing
heroin and cocaine base with the intent to distribute those
substances in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C), and 18 U.S.C. § 2. (Doc. 1 at 6.)
Attorney
Sherrer was appointed to represent Harris pursuant to the
Criminal Justice Act. (Doc. 6; Doc. 6-3.) Harris was
arraigned on July 24, 2012, in the District Court of Vermont.
He pleaded not guilty to all of the charges set forth in the
Indictment. (Doc. 8.) By request of Attorney Sherrer, the
Court ordered that pretrial motions were to be filed by
September 24, 2012.[1] (Doc. 8.)
II.
Pretrial Proceedings
A.
Initial Scheduling Orders and Motions Deadlines
After
Harris's arraignment, the Court issued a Criminal
Pretrial Scheduling Order reiterating that pretrial motions
were to be filed by September 24, 2012, based on Attorney
Sherrer's request. (Doc. 9 at 3.) The Court found that
this delay was justified by the complexities of the case and
the ends of justice. (Id. at 4.) The Court further
ordered that this period of delay would “be excludable
in computing the time in which the trial . . . must commence
pursuant to the Speedy Trial Act.” (Id.)
Subsequently,
on September 24, 2012, Attorney Sherrer filed a motion for
extension of time to file pretrial motions. (Doc. 11.) The
Court found that the ends of justice were served by granting
this motion and set the new pretrial motions deadline for
October 24, 2012. (Doc. 12 at 1.) The Court further noted
that this additional period would be excluded from computing
time under the STA exclusion found at 18 U.S.C. §
3161(h)(7). (Id.)
On
October 29, 2012, Attorney Sherrer filed another motion for
extension of time, (Doc. 13); the Court granted this motion
on October 31 for the same reasons as his prior requests.
(Doc. 14.) The Court set the new deadline for November 13,
2012, and ordered that the delay would again be excludable in
computing the time pursuant to § 3161(h)(7).
(Id. at 1.) Attorney Sherrer did not file any
pretrial motions by the November 13 deadline.
On
November 16, 2012, the Court set the jury draw for January 8,
2013. (Doc. 16.)
B.
Preliminary Plea Negotiations
Relevant
to the instant Motion, beginning sometime in September 2012,
the government and Attorney Sherrer engaged in extensive plea
negotiations, despite Harris maintaining that he was not
interested in cooperating with the government. (Doc. 115 at
2, ¶ 13; id. at 8, ¶¶ 46, 47.)
According to Attorney Sherrer, the government took a firm
approach in these negotiations based on Harris's prior
criminal record and the government's position that a
death had resulted from heroin distributed by Harris.
(Id. ¶ 47.)
Specifically,
the government was not willing to offer a plea agreement that
exposed Harris to anything less than a 10-year mandatory
minimum term of imprisonment. (Id. at 8-9, ¶
48; Doc. 115-4.) To reach this minimum threshold, the
government initially proposed that Harris plead guilty to two
charges: Count One, which imposed a five-year mandatory
minimum for conspiring to distribute cocaine base and heroin
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B),
846, and an as-yet-unfiled count, possessing a gun in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1)(A)(i), which, by statute, required
the imposition of a consecutive five-year mandatory minimum
term of imprisonment. (Doc. 115-4; Doc. 116-4.) Because a
conviction under § 924(c) required imposition of a
five-year consecutive mandatory minimum term, the mandatory
minimum sentence under the government's first proposal
was 10 years.
If
Harris refused the offer, the government indicated that it
would file both a superseding indictment charging Harris with
distributing controlled substances with death resulting and
an information under 21 U.S.C. § 851 notifying Harris of
the government's intent to seek a sentencing enhancement
based on Harris's prior felony drug convictions. (Doc.
115-4.) According to Attorney Sherrer, a conviction for these
offenses would have potentially exposed Harris to either a
15-year or 20-year mandatory minimum term of imprisonment.
(Id.)
Attorney
Sherrer sought a revised plea offer in which the government
would forego seeking a 10-year mandatory minimum. (Doc. 115
at 9, ¶ 51.) As part of his efforts, Attorney Sherrer
met with both the Assistant United States Attorney
prosecuting Harris and the United States Attorney on December
12, 2012. (Id. ¶ 52.) Attorney Sherrer
subsequently gathered more information regarding Harris's
personal background in order to offer this background as
mitigating evidence. (Id.) Attorney Sherrer then
wrote to the government attorneys, arguing that Harris's
tragic personal history justified a five-year mandatory
minimum term, not a 10-year term. (Doc. 115-5 at 2-4.)
C.
Section 851 Notice and Superseding Indictment
Attorney
Sherrer's efforts aimed at convincing the government to
reduce its plea offer were unsuccessful. On December 14,
2012, the government filed an information pursuant to 21
U.S.C. § 851 notifying Harris of its intent to seek a
sentencing enhancement based on Harris's two prior felony
drug convictions in New York state court. (Doc. 17.)
At a
December 17, 2012 pretrial conference, the Court discussed
this § 851 notice with Harris and Attorney Sherrer and
informed Harris that, in the event of a conviction, the
notice of prior conviction under § 851 exposed him to a
possible 10-year mandatory minimum sentence and that the
Court would have no discretion to sentence Harris below that
minimum. (Doc. 104 at 3-4.) The Court also noted that the
government had indicated that it was contemplating charging
Harris with possessing a gun in furtherance of drug
trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A)(i). (Id. at 4.) The Court explained to
Harris that a conviction arising under 18 U.S.C. §
924(c)(1)(A)(i) would expose Harris to an additional
five-year consecutive mandatory minimum term. (Id.)
Thus, along with the 10-year mandatory minimum for the §
851 notice, Harris's exposure at trial would be at least
a 15-year mandatory minimum sentence. (Id.) Finally,
the Court noted that the government had indicated that it was
also contemplating charging Harris with the death resulting
from the distribution of controlled substances, which could
further increase Harris's exposure to a greater mandatory
minimum sentence. (Id. at 4-5.) Harris stated that
he had no confusion about these potential sentences and,
through Attorney Sherrer, agreed to keep the January 8, 2013
trial date in place. (Id.)
On
January 3, 2013, the grand jury returned a Superseding
Indictment charging Harris with the original six counts and
an additional count. (Doc. 20.) The new count-Count
Seven-charged Harris with violating 18 U.S.C. §
924(c)(1)(A), possessing a gun in furtherance of a drug
trafficking crime.[2] (Doc. 20 at 7.) The arraignment on the
Superseding Indictment was set for January 8, 2013,
immediately prior to the scheduled jury draw. (Doc. 21.)
D.
Final Plea Offers
On
January 4, 2013, the government extended to Harris two
distinct final plea offers based on the § 851 notice and
the new firearms charge alleged in Count Seven of the
Superseding Indictment. (See Docs. 115-6, 115-7,
116-2.) Under the first offer, Harris would plead guilty to
Count One, conspiring to distribute heroin and 28 grams or
more of cocaine base in violation of 21 U.S.C. §§
846, 841(a)(1) and (b)(1)(B). (Doc. 115-6 at 1, ¶ 1.)
Harris would also be compelled to agree to the sentencing
enhancement under 21 U.S.C. § 841(b)(1)(B) for offenders
with a prior felony drug conviction, exposing Harris to a
10-year mandatory minimum. (Id. ¶ 2.) The
second plea offer also exposed Harris to a 10-year mandatory
minimum; the offer retained the conspiracy-to-distribute
charge under Count One but replaced the § 841(b)(1)(B)
sentencing enhancement for Harris's prior felony drug
conviction with a plea of guilty to Count Seven, possessing a
firearm in furtherance of a drug trafficking crime under 18
U.S.C. § 924(c)(1)(A)(i). (Doc. 115-7 at 1, ¶ 1.)
After discussing both offers with counsel, Harris rejected
both plea offers. (Doc. 115 at 10, ¶ 54; Doc. 116-3.)
E.
Arraignment and Jury Draw Continuance
Harris
was arraigned on the Superseding Indictment on January 8,
2013. (Doc. 96.) Prior to the arraignment hearing, however,
the U.S. Marshals brought Harris into the courtroom while
shackled. (Doc. 96 at 2; Doc. 115 at 5, ¶ 34.) Several
prospective jurors were waiting in the courtroom for the jury
draw and witnessed Harris shackled. (Doc. 115 at 5, ¶
34.) To avoid this potential prejudice to Harris, the Court
granted Attorney Sherrer's motion to continue the jury
draw. (Id. ¶ 35; Doc. 96 at 3.) The Court
continued the jury draw for 30 days and tolled the speedy
trial clock during these 30 days in the interests of justice,
setting forth its factual finding on the record consistent
with 18 U.S.C. § 3161(h)(7). (Doc. 96 at 20.)
The
transcript of the arraignment also reveals that, while Harris
was present in court, the government carefully explained the
two plea offers that had been extended to Harris, and
Attorney Sherrer observed that the plea offers “ha[d]
been given considerable thought and discussion.” (Doc.
96 at 5-6, 13.) The Court ascertained from Harris directly
that the plea offers had been communicated to him by counsel.
(Id. at 23.) Harris acknowledged this communication
and stated that he had rejected the offers and wished to
exercise his right to trial by jury. (Id.)
Furthermore,
at the arraignment, the presiding district judge discussed
rescheduling the trial. (Id. at 3.) During this
discussion, the Court paid careful attention to the
requirements of the STA. (Id. at 3-4, 17-19.) Upon
inquiry, the Court was informed that only 17 days remained on
the 70-day speedy trial clock. (Id. at 17-19.) The
Court proposed that, with an appropriate STA exclusion, it
could extend to Harris a choice regarding the timing of his
trial: either Harris could move forward with another district
judge within the next 30 days or, if Harris wished to
continue with the same presiding judge, he could wait until
early March for his trial. (Id. at 18-19; Doc. 115
at 5-6, ¶ 36). Ultimately, Harris chose to remain with
the same presiding judge and the jury draw was set for March
6, 2013, with the trial to commence on March 12. (Doc. 96 at
18-19; Doc. 115 at 5-6, ¶ 36; see also Doc.
27.)
Subsequently,
the government filed an unopposed motion to exclude the days
from February 6, 2013, to the jury draw on March 6, 2013,
from being counted under the STA. (Doc. 28.) The Court
granted this motion, again concluding that the ends of
justice outweighed the interests of the public and Harris in
a speedy trial under 18 U.S.C. § 3161(h)(7). (Doc. 29.)
Then,
on February 15, Attorney Sherrer moved to continue the jury
draw, (Doc. 30); the Court granted the motion and excluded
the days from March 6 until the new jury draw date of April
2, 2013, from being counted in the speedy trial computations.
(Doc. 31 at 1-2.) Ultimately, Harris's jury draw
commenced on April 9, 2013, and his trial began on April 10,
2013. (Docs. 56, 59.)
F.
Pretrial Motions
Throughout
the proceedings, Attorney Sherrer filed a number of pretrial
motions.[3] As relevant to the instant § 2255
Motion, on February 22, 2013, Sherrer filed his first motion
to suppress. (Doc. 32.) In the motion, along with challenging
evidence derived in a search of a Barre, Vermont residence,
Attorney Sherrer questioned the source of a photograph of
Harris used in assembling a photographic array. (Doc. 32 at
15-16.) The photographic array had been presented to Anthony
Miller, a coconspirator and trial witness, who identified
Harris as “Black.” (Id. at 15.) Because
the identity of “Black” had not been known to the
government for a substantial period of time, Sherrer sought
an order compelling the government to disclose the reason it
had included Harris in the array shown to Miller.
(Id. at 16.) Attorney Sherrer further stated that,
once the source of the photograph was known, the
constitutionality of Miller's identification might be
challenged. (Id.)
In a
written opinion, the Court denied Sherrer's motion to
compel disclosure of the source of the photograph. (Doc. 41
at 16-17.) The Court concluded that, “[a]ssuming that
the defendant does not contest that the photograph used to
identify him was in fact him, how the government obtained the
photograph is irrelevant.” (Id. at 17.)
G.
Pretrial Motions Hearing
During
a motions hearing on April 8, 2013-two days before the
trial-Attorney Sherrer disclosed two strategic disagreements
that he was having with Harris. (Doc. 97 at 46-47.) Harris
wanted Sherrer to file a motion to dismiss based on alleged
violations of Harris's speedy trial rights and another
motion to suppress certain out-of-court identifications made
by a potential trial witnesses, Sarah Lucas. (Id.)
Although Attorney Sherrer did not believe that either motion
had merit, at Harris's behest, he raised the issues
before the Court. (Id.)
The
Court asked Harris to put his concerns on the record.
(Id. at 47.) Harris stated that he understood that
“any time that was afforded to the government does not,
like, go against my speedy trial time . . . and the time for
me to have to go to trial . . . like[] motion practice or
whatever.” (Id. at 48.) But Harris still
contended that the speedy trial clock had expired.
(Id. at 51-52.) In response, the Court generally
explained tolling to Harris and concluded that there was no
formal motion to dismiss for speedy trial violations.
(Id. at 50-52.) Next, Harris asked about challenging
an identification that occurred more than 20 months after the
alleged drug sale. (Id. at 57.) The Court determined
that any potential problem with the identification could be
addressed with a vigorous cross-examination at trial.
(Id. at 57-58.)
III.
Trial
The
trial began in the afternoon of April 10, 2013, after the
Court addressed several additional outstanding motions. (Doc.
58; see generally Doc. 83.)
During
the three-day trial, the government presented tangible
evidence and the testimony of law enforcement personnel and
several coconspirators to establish that Harris, also known
as “Black, ” was an armed and experienced drug
trafficker who, along with the coconspirators, brought crack
cocaine and heroin from New York City to Barre, Vermont,
where “Black” sold the drugs, including on the
occasions charged in the Superseding Indictment. (Doc. 83 at
49-50.)
The
testimony of Anthony Miller, one of the coconspirators, is
pertinent to the present § 2255 Motion. Miller
cooperated with the government pursuant to a plea agreement.
(Doc. 85 at 29-35.) Prior to trial, Miller twice identified
Harris from photographs. The first time, on March 27, 2012,
Miller was shown a single photograph taken from a seized iPad
and he was asked by law enforcement if he could identify the
man in the photo. (Doc. 116-1 at 51-52.) He identified the
man as “Black, ” an alias that Harris used.
(Id.) The second identification occurred as part of
a photo array presented to Miller on April 16, 2012; Miller
again identified the photo of Harris as “Black”
in the lineup. (Id. at 51 n.4; Doc. 32 at 15-16,
Doc. 32-6.)
During
the trial, Miller testified that, when he got out of prison
in July 2011, he returned to his home in the Bronx, where he
met “Black.” (Doc. 85 at 35-36.) According to his
testimony, he had known “Black” for a
“[c]ouple of years.” (Id. at 35.)
“Black” told Miller that he “had a spot out
of town” in Barre, Vermont, where they could make money
selling drugs. (Id. at 36.) Miller then explained
that he and “Black” began traveling to Barre to
sell heroin and crack cocaine. (Id. at 37-38.) They
took multiple trips by bus for this purpose. (Id. at
39-41.) At other times, Miller took the bus with other
conspirators and “Black.” (Id. at
42-45.) Once the drugs were transported to Barre, Miller and
“Black” would chop and bag the heroin and crack
cocaine to sell on the streets. (Id. at 41.)
Finally, in the course of his testimony, Miller identified
“Black's” voice on a recording, identified
“Black” in video surveillance, and Miller
identified “Black” as Harris in the courtroom.
(Id. at 58, 67, 68.)
Similarly,
numerous other witnesses identified Harris as
“Black” during the trial and offered additional
testimony supporting the government's case: Rebecca
O'Neill, who allowed Harris and Miller and another
coconspirator stay at her Barre apartment while they were
selling crack cocaine and heroin, (see Doc. 83 at
235-37; Doc. 84 at 30-31); John Wiley, who traveled with
“Black” to New York City to acquire heroin,
(id. at 83-94); and Lisa Barbour, who also
transported crack cocaine and heroin with
“Black.” (Id. at 145-57.)[4] In addition,
Detective Shawn Loan testified that the Vermont State Police
accomplished a series of controlled purchases of drug
evidence from “Black” and his coconspirators.
(Doc. 83 at 119.) Specifically, a confidential informant,
Sarah Lucas, purchased heroin and crack cocaine on August 9,
September 20, and September 22, 2011. (Id. at
120-22; 148-156.) Finally, Detective Loan testified that
Sarah Lucas had identified Harris as “Black” from
a photographic lineup prior to trial. (Id. at
160-61.) Lucas herself described her purchases of drug
evidence and authenticated recordings of the buys from
“Black”. (Id. at 204-18.)
On
April 12, 2103, the jury found Harris guilty on five counts:
Count One, conspiring to distribute over 28 grams of cocaine
base and heroin in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B), 846; Counts Three through Five,
knowingly and intentionally distributing either heroin or
cocaine base on August 9, September 20, and September 22,
2011, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C) and 18 U.S.C. § 2; and Count Six, knowingly
and intentionally possessing heroin and cocaine base with the
intent to distribute those substances in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. §
2. (Doc. 63.) The jury found Harris not guilty on Count Two
and Count Seven. (Id.)
IV.
Sentencing
A.
Original Sentence
A
presentence report (PSR) was submitted to the Court in
anticipation of sentencing. The PSR noted that, based on the
21 U.S.C. § 851 notice of prior conviction and the drug
quantity allegation set forth in Count One, Harris's
Count One conviction carried a 10-year mandatory minimum with
a maximum of life under 21 U.S.C. § 841(b)(1)(B), and
that Counts Three through Six, the maximum term of
imprisonment was 30 years pursuant to 21 U.S.C. §
841(b)(1)(C). (PSR at 22, ¶ 83.)
For the
Sentencing Guideline calculation, the PSR began with a base
offense level of 30. (Id. at 13-14, ¶ 39.) The
PSR added two levels to this base offense level because
Harris possessed a dangerous weapon and two additional levels
because Harris made a credible threat to use violence.
(Id. at 14, ¶ 40 (citing USSG §
2D1.1(b)(1), (2).) Finally, the PSR determined that Harris
was a career offender under USSG § 4B1.1 and added three
additional levels because Harris had at least two prior
felony controlled-substance offenses. (Id. ¶
45.) Thus, Harris's adjusted offense level was 37.
(Id.) The PSR further concluded that Harris had a
criminal history score of 11. (Id. at 18, ¶
59.) This score included two points for a prior conviction
for false personation in New York. (Id. at 16,
¶ 52.) Generally, 11 criminal history points would have
placed Harris in a Criminal History Category (CHC) of V, but
the PSR concluded that, because of Harris's status as a
career offender, the CHC was VI. (Id. ¶ 59.)
With a total offense level of 37 and a CHC of VI, Harris
faced an advisory Sentencing Guideline imprisonment range of
360 months to life. (Id. at 22, ¶ 84.)
On
January 27 and January 30, 2014, Harris appeared for
sentencing proceedings. (Docs. 86, 88, 94.) In response to
the Court's inquiry, Harris acknowledged that he had
reviewed the PSR (Doc. 94 at 4); and, although Harris stated
that he found some factual mistakes, he admitted that he had
discussed the errors with Attorney Sherrer. (Id. at
4-5.) The Court next considered a number of issues raised by
Sherrer regarding the advisory Sentencing Guidelines.
(Id. at 11.) In doing so, the Court heard witness
testimony and reviewed several documents that had been
admitted into evidence, including a New York certificate of
disposition indicating that, as of February 6, 2013,
Harris's 2008 convictions were recorded in the State of
New York's court records. (Id. at 11, 137,
see generally Id. 37-130; Doc. 82-1.)
After
hearing this testimony and reviewing the evidence, the Court
made several adjustments to Harris's adjusted offense
level. First, based on the parties' agreement, the Court
concluded that Harris was not a career offender under the
advisory Sentencing Guidelines. (Doc. 94 at 11.) Next, the
Court set the base offense level at 30 based on the amount of
drugs described in the testimony. (Id. at 181, 237.)
To this base level, the Court added a two-level enhancement
under USSG § 2D1.1(b)(1) because the testimony establish
that Harris had been in possession of a firearm.
(Id. at 182, 237.) But the Court found that the
testimony did not credibly established that Harris had made a
threat and, as a result, the Court did not add a two-level
enhancement under § 2D1.1(b)(2). (Id. at
183-84, 237.) Thus, the Court determined that Harris's
adjusted offense level was 32. (Id. at 237.)
The
Court also adjusted Harris's criminal history score,
concluding that the testimony and evidence supported the
assessment of only seven points. (Id. at 183-85,
237.) Of these seven points, two included Harris's prior
conviction for false personation in New York. (Id.
at 10, 158.) Attorney Sherrer agreed with the assessment of
these two points at the sentencing hearing (id. at
157-58), but he stated for the record that Harris disputed
the two points assessed based on the length of his
imprisonment for the false personation conviction.
(Id. at 157.) Ultimately, the Court noted that
Harris “didn't raise an objection to the two
points” (see Id. at 179), and applied the two
points along with five other points, which totaled seven
criminal history points and resulted in a CHC of IV.
(Id. at 185, 237.)
The
Court then heard argument from defense counsel and the
government regarding the statutory sentencing factors found
at 18 U.S.C. § 3553(a). (Id. at 185-201,
216-26.) Attorney Sherrer advocated for the 10-year mandatory
minimum sentence, pointing to Harris's troubled personal
history and upbringing, as well as his youth. (Id.
at 192-93, 201.) The government sought a 210-month term of
imprisonment, or 17-and-a-half years, arguing that Harris was
not motivated by addiction and that he directed the
conspiracy solely to enrich himself by using Vermont addicts.
(Id. at 216-17.) The Court reviewed the sentencing
factors set forth in 18 U.S.C. § 3553(a) and determined
that a “modest adjustment” was appropriate and
the Court reduced Harris's offense level to 31.
(Id. at 236-37.) With a CHC of IV, this offense
level adjustment yielded a recommended sentencing range of
151-188 months. (Id. at 236.)
Prior
to imposing Harris's sentence, the Court confirmed
Harris's admission to two prior felony-drug convictions
consistent with 21 U.S.C. § 851. (Id. at
228-29.) Although Harris claimed that the felonies had been
removed from his record, (id.), the Court noted on
the record that Harris's affirmation was sufficient under
21 U.S.C. ยง 851(b) to establish the prior convictions
and to impose the 10-year ...