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United States v. Harris

United States District Court, E.D. Kentucky, Southern Division, London

May 11, 2018

TIMOTHY HARRIS, also known as “Magic”, Defendant.


          Danny C. Reeves United States District Judge.

         Defendant Timothy Harris has filed a motion to withdraw his guilty plea. [Record No. 410] The Court denied Harris's motion at a hearing held earlier this date. This Memorandum Opinion and Order supplements the Court's oral findings and conclusions regarding the defendant's motion.


         A federal grand jury returned an indictment on June 6, 2016, charging Harris with one count of conspiring to distribute 500 grams or more of methamphetamine and one count of distributing heroin. [Record No. 1] It later returned a superseding indictment on July 28, 2016, charging Harris and others with conspiring to distribute 500 grams or more of a mixture containing methamphetamine and 100 grams or more of a mixture containing heroin. [Record No. 20] Harris was also charged with distributing heroin. Id. Following several continuances, trial was scheduled to begin for Harris and a co-defendant (Maurice Sydnor) on December 18, 2017. However, shortly after the matter was reassigned to the undersigned (December 12, 2017), both Harris and Sydnor filed motions for re-arraignment. [Record Nos. 295 and 297] As a result, the trial previously scheduled for December 18, 2017, was canceled. [Record No. 298]

         Harris pled guilty to Count 1 of the superseding indictment on December 18, 2017. [Record Nos. 305, 402');">402] Count 1 charged that he conspired with others to knowingly and intentionally distribute methamphetamine and heroin mixtures in violation 21 U.S.C. §§ 841(a)(1) and 846.

         Harris's sentencing hearing was originally scheduled for March 22, 2018. However, approximately one week before this hearing, the Court received correspondence from Harris in which he expressed dissatisfaction with his decision to plead guilty in light of the possible sentence he might receive. [Record No. 357] Harris suggested in this correspondence that his retained attorney, Mark Chandler, provided inadequate representation by leading him to believe that he would receive a shorter term of imprisonment than reflected in his Presentence Investigation Report. Id.

         At the beginning of the March 22nd hearing, the Court addressed the allegations contained in Harris's letter. The following exchange occurred:

THE COURT: Before we proceed with the [sentencing] hearing, there's one matter I want to take up. Mr. Harris submitted a letter to the Court, which has been filed in the record as docket entry number 357, indicating that he's displeased with the - I suppose the guideline calculations in this case and states that he's been fooled into entering a plea in this case and is complaining about representation. So I'll need to take that up before we proceed with the sentencing hearing. I want to do this in two parts. First, I want the United States present in order to address any relevant factual information concerning negotiations leading up to the guilty plea in the case on December 18th. I do want to hear about matters such as whether there were certain penalties that were included or discussed, including some of the enhancements in the - that appear in the presentence report, to address some of these questions. Then after the government is able to address those matters, I'll ask you [Assistant United States Attorney (“AUSA”) Trimble] to step outside, and then I'll take this matter up and allow the defendant to provide me with any additional information he thinks would be appropriate.

[Record No. 403, p. 3]

         The parties complied with the Court's request, with AUSA Trimble confirming that a notice of enhanced penalties was filed pursuant to 21 U.S.C. § 851 on the day that Harris's counsel filed the motion for re-arraignment (December 14, 2017). This point had been the subject of earlier discussions and/or negotiations, since Harris was believed to have an additional qualifying felony conviction that would have increased his sentence to life imprisonment if he proceeded to trial and was convicted of the pending charges. However, throughout the parties' negotiations, the United States always contemplated filing a notice for enhanced penalties under § 851 with respect to one of Harris's prior convictions.

         In addition to addressing the potential enhanced penalties in the written Plea Agreement reviewed and signed by Harris prior to the re-arraignment hearing held on December 18, 2017, the parties made nonbinding recommendations to the Court concerning guidelines calculations in that document. Regarding these issues, AUSA Trimble explained as follows:

AUSA Trimble: . . . there were two plea offers that were made in this case. One was about a year earlier than the one that was originally - the one that was ultimately made, accepted by the defendant. I can look back and see the differences in the terms, but as I stand here and recollect, I don't believe it was a change in either the mandatory minimum paragraph language discussing the minimum sentence, and I don't believe that there was a change in the - in the agreements between the parties - . . . regarding the enhancements.
THE COURT: Were there discussions about whether the government would file an 851 notice with regard to one as opposed to two . . . convictions that might qualify, that would then cause the potential range to be a range of life imprisonment?
AUSA Trimble: Your Honor, there was, -- the only discussions that were ever [held] between the parties were contemplation [of] filing one 851. This case, if my memory serves me correctly, was originally indicted during a prior administration, a little bit of a different view, the Smart on Crime initiative, aware of the Holder memorandum, and there was only ever discussions with the - with the defendants and the filing of one 851. . . . I always represented there could be circumstances, factual circumstances, in the case that could - could change that initial analysis that was made. But from the very first plea offer to the final plea offer, there was not a representation or circumstance which one 851 would not be filed - that any 851s would not be filed.
THE COURT: Is it the government's position that the defendant has received a benefit from the plea agreement itself based on the possibility of two qualifying felony convictions? In other words, if the defendant is allowed to withdraw his guilty plea at this point, and the matter proceeds to trial, and if he is convicted, is it the government's position that there could be two qualifying felony convictions, as that term is defined by 802, subsection (44), specifically paragraphs 85 and 89 [of the PSR]?
AUSA Trimble: Your Honor, if I understand your question correctly, I do agree that there are two potential qualifying felony drug convictions that could have - that could be listed in an 851, or could have been listed in an 851 in this case.

[Id. at pp. 5-7] Counsel for the government was excused from the courtroom following this questioning.

         Afte r the Court su mmarized the def endant's letter, Harris's attorney made the following representations regarding Harris's claim that he had been coerced into entering a guilty plea against his will:

MR. CHANDLER: . . . Judge, we did have discussions on a number occasions concerning this case, the possible outcomes, potential outcomes of the case, either through trial or through a plea. We talked about the possibility of a second 851 being filed against Mr. Harris, which could result in a life sentence. We talked about if the case proceeded to trial, I felt like it increased his chance of obtaining a life sentence. Basically, we discussed that there were no - there really were no good options for Mr. Harris. About the only thing he had going for him was his acceptance of responsibility, and the government and our good faith calculation of what we thought the applicable guidelines should be that were placed in the plea agreement. We - we discussed all of the possible penalties, how the guidelines work, how his criminal history works, the fact that the guidelines are advisory and that we could make other arguments to the Court concerning his sentencing. I think we covered every area that we could cover on advising him of the potential penalties and what he was facing.
THE COURT: Did you have any conversations with members of the probation office about potential penalties in the case or guideline calculations?
MR. CHANDLER: I did not, Judge.
THE COURT: Because it appears that based on the information that was available to the probation office, that these enhancements that have been included in the presentence report were certainly within their contemplation, including the firearm issue, which I believe there were some - some suppression issues that were raised earlier, so it would have been at least known, issue of credible threats of violence, and also maintaining a drug premises -
MR. CHANDLER: Yes, sir.
THE COURT: -- which would take the defendant up to [a] total offense level of 41, even with acceptance of responsibility, because the parties included in their plea agreement the four-level increase for the defendant's role in the offense.
THE COURT: So if all that information was known at the time - and here is where I am coming from. If all that information was known and considered at the time, even [if] one or two of these enhancements were considered, the guideline calculations are not that far from what the parties would have been discussing, number one. Number two, at the time the defendant's plea was entered I ensured - I made it clear that the final range would not be known until the presentence report was prepared, and it would be impossible for counsel or the Court to know exactly what the range would be at that time.
THE COURT: So it was clear that the defendant acknowledged and understood that, that we would have to wait and see what the presentence report looked like.
MR. CHANDLER: And he has . . . sticker shock. . . . The enhancements add a little over eight years to his range.

[Sealed Record No. 404, pp. 3-6]

         Chandler then provided further explanation regarding his plan to ask for a departure from the guideline range due to potential overstated criminal history. Thereafter, Defendant Harris was given the opportunity to provide additional information concerning his claims.

         After acknowledging that he met “many times”[1] with his attorney, Harris represented that Chandler provided “ghost calculations” of what his sentencing guideline range was expected to be, or according to Harris, “pretty much what it was going to be, and it wouldn't have been my intention under any other circumstances.” [Id. at pp. 7-8] Harris did not provide other information regarding his previous written claim that his attorney had pressured him against his will into entering a guilty plea.

         Against this backdrop, it is necessary to go back to parties written Plea Agreement and review discussions and representations made during the re-arraignment hearing to look for any evidence that Harris: (i) was coerced by his retained counsel; (ii) expressed any belief that the proposed guideline range -- as outlined in the parties' Plea Agreement -- was binding on the Court; or (iii) did not fully or completely acknowledge his guilty. But a full and complete review reveals no such credible evidence.

         Harris signed the final version of his written Plea Agreement on December 14, 2017 (the same day that he moved for re-arraignment). [Record No. 306] The documents follows the format of plea agreements commonly used in this district. In paragrap. 1, the parties agreed that Harris would enter a guilty plea to Count 1 of the Superseding Indictment which charged him with conspiring to distribute 500 grams or more of a mixture or substance containing methamphetamine and 100 grams or more of a mixture or substance containing heroin. In exchange, the remaining counts would be dismissed at the time of sentencing. Next, the parties outline the elements that the government would be required to prove if the matter proceeded to trial on Count 1 (paragraph 2 of Plea Agreement). In paragrap. 3, the parties outline the facts that could be proven regarding Count 1. Harris acknowledged that the facts were correct and could be proven by the requisite standard if the matter proceeded to trial.

         Paragraph 4 references the enhanced statutory penalty Harris faced as a result of a prior qualifying felony drug conviction. In other words, at the time Harris signed the Plea Agreement, the parties contemplated and acknowledged that notice of the qualifying conviction would be filed pursuant to 21 U.S.C. § 851.

         Then, in paragraph 5, the parties made certain non-binding recommendations to the Court regarding calculation of the defendant's guideline range of imprisonment. This paragraph states:

5. Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), the United States and the Defendant recommend the following sentencing guidelines calculations, and they may object to or argue in favor of other calculations. This recommendation does not bind the Court.
(a) The United States Sentencing Guidelines (U.S.S.G.) manual in effect at the time of sentencing will determine the ...

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