United States v. Percy Harris , 331 F. App'x 942 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-28-2009
USA v. Percy Harris
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2478
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Recommended Citation
"USA v. Percy Harris" (2009). 2009 Decisions. Paper 1295.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2478
_____________
UNITED STATES OF AMERICA
v.
PERCY HARRIS,
Appellant.
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 05-cr-00481)
District Judge: Honorable Christopher C. Conner
_______________
Submitted Under Third Circuit LAR 34.1(a)
May 20, 2009
Before: FUENTES, JORDAN, and NYGAARD, Circuit Judges.
(Filed : May 28, 2009)
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Percy Harris challenges the Order of the United States District Court for the
Middle District of Pennsylvania denying his motion for a sentence reduction under 18
U.S.C. § 3582(c)(2). On appeal, he argues that the District Court erred by neglecting to
consider the applicability to his sentence of the factors listed in 18 U.S.C. § 3553(a).
Because Harris was not eligible for a reduction, we will affirm.
I. Background
We write for the parties, who are familiar with the factual background of the case
and thus recount only those facts that are relevant to our disposition.
On March 22, 2006, Harris pled guilty to one count of distribution and possession
with intent to distribute cocaine base and cocaine hydrochloride and one count of
forfeiture. According to the Probation Office’s presentence report (“PSR”), Harris was
responsible for 23.68 kilograms of cocaine base and 77.54 kilograms of cocaine
hydrocholoride. As a result, his offense level was 35 and his sentencing range was 210 to
240 months’ imprisonment.1 Harris did not contest the Probation Office’s findings as to
the weight of the drugs, and the Court adopted those findings for sentencing purposes.
The Court sentenced Harris to 240 months.
After the United States Sentencing Commission instituted a retroactive two-level
guideline reduction for crack cocaine offenses, Harris moved to have his sentence
reduced pursuant to 18 U.S.C. § 3582(c)(2). The Court concluded that he was ineligible
for a reduction and denied the motion. This timely appeal followed.
1
The calculations actually resulted in a sentencing range of 210 to 262 months, but the
upper end was reduced to the statutory maximum of 240 months. See 21 U.S.C.
§ 841(b)(1)(A).
2
II. Discussion 2
Under 18 U.S.C. § 3582(c), courts are generally prohibited from modifying terms
of imprisonment once they are imposed. An exception exists, however, for “defendant[s]
who ha[ve] been sentenced ... based on a sentencing range that has subsequently been
lowered by the Sentencing Commission ... .” Id. § 3582(c)(2). As Harris correctly notes,
Amendment 706 has the effect of lowering the sentencing ranges for defendants
convicted of cocaine base crimes. See U.S.S.G., app. C, amend. 706 (2007). However,
its scope is limited by Amendment 715, which provides that the “reduction ... shall not
apply in a case in which ... the offense involved 4.5 [kilograms] or more ... of cocaine
base.” 3 U.S. Sentencing Commission Notices, 73 Fed. Reg. 23,521 (Apr. 30, 2008).
Harris’s sentence was based on the uncontested finding that he was responsible for
distributing and possessing with intent to distribute 23.68 kilograms of crack cocaine. By
the plain language of Amendment 715, Amendment 706 does not apply to Harris.
Because his sentence is not “based on” a sentencing range that the Sentencing
Commission lowered, the Court rightly concluded that it lacked the authority to reduce his
2The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231.
Our jurisdiction arises under 28 U.S.C. § 1291. The District Court ruled that it lacked the
authority to reduce Harris’s sentence under 18 U.S.C. § 3582(c)(2), which presents a legal
issue subject to de novo review. See United States v. Edwards, 309 F.3d 110 (3d Cir.
2002) (“Our review over legal questions concerning the proper interpretation of the
Sentencing Guidelines is plenary.” (internal citation omitted)).
3Amendment 715 was made retroactive by Amendment 716, as of May 1, 2008.
U.S. Sentencing Commission Notices, 73 Fed. Reg. 23,521 (Apr. 30, 2008); see also
United States v. Starks, 551 F.3d 839, 840 n.4 (8th Cir. 2009).
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sentence. 18 U.S.C. 3582(c)(2). Thus, Harris’s only argument on appeal – that the Court
should have examined whether the § 3553(a) factors counseled in favor of lowering his
sentence – is misplaced. The Court could not consider the effect of § 3553(a) on Harris’s
sentence because it had no authority to do so.
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s Order denying
Harris’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).
4