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United States v. Harris

April 20, 2010


The opinion of the court was delivered by: John R. Tunheim United States District Judge


Nakia Lashawn Harris pleaded guilty to conspiracy to distribute more than 500 grams of methamphetamine, and the Court sentenced him to 120 months imprisonment. This matter is before the Court on defendant's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (Docket No. 108.) Harris argues that he received ineffective assistance of counsel because his attorney failed to challenge the drug quantities set forth in the plea agreement and the Presentence Investigation Report, and because the two-level enhancement for possession of a firearm was unlawful. For the reasons stated below, the Court denies the motion and declines to issue a certificate of appealability.


On November 17, 2006, Nakia Harris was charged by criminal complaint with possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Criminal Compl. at 1, Docket No. 1.) On November 20, 2006, Magistrate Judge Susan R. Nelson held a detention hearing, and Bob Miller appeared as retained counsel for Harris. (Docket No. 2.) On January 10, 2007, Magistrate Judge Franklin L. Noel held a hearing on Harris's motion for dismissal of Miller, granted the motion, and, pursuant to the Criminal Justice Act, ordered that the Office of the Federal Defender provide a public defender to represent Harris. (Docket No. 14.) Later that day, the Office of the Federal Defender filed a notice of appearance naming Robert Owens as appointed counsel of record. (Docket No. 15.) Count one of the superseding indictment charged Harris with possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and count two charged Harris with conspiracy to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (Superseding Indictment, Docket No. 43.)

In a hearing on October 18, 2007, Harris, represented by Owens, pleaded guilty to count two of the superseding indictment, and the Court requested that the United States Probation Office prepare a Presentence Investigation and Report ("PSI Report"). (Docket No. 69.) After receiving the PSI Report, Harris filed a pro se motion to withdraw his plea. (Docket No. 74.) On January 18, 2008, the Court held a hearing and granted the motion, and also granted Harris's oral motion for appointment of new counsel. (Docket No. 76.) On January 24, 2008, the Office of the Federal Defender filed a notice of appearance naming Leon Trawick as appointed counsel of record. (Docket No. 78.)

Trawick "has been a criminal defense attorney working in both the state and federal courts in Minnesota for more than 36 years and has handled the defense of hundreds of criminal cases." (Trawick Aff. ¶ 1, Gov't's Resp. in Opp'n to Pet'r's Mot., Ex. 2, Docket No. 112.)

In an affidavit filed with the Court on February 19, 2010, Trawick states that he "had multiple in-person and phone conversations with [Harris] concerning the facts of the case, and specifically explained that [Trawick] had reviewed the discovery that had been provided to him directly or through prior counsel." (Id. ¶ 5.) Trawick explains:

The United States' evidence -- including statements made by [Harris] to law enforcement -- revealed that the defendant was involved in a conspiracy to distribute more than 500 grams of methamphetamine and had personal involvement with approximately two and one-half pounds of methamphetamine (the equivalent to approximately 1,134 grams of methamphetamine). (Id.) Trawick therefore "recommended that [Harris] enter a plea of guilty, as he had previously, if the United States was willing to provide the same proposed plea agreement." (Id. ¶ 7.) Based on Trawick's review of the discovery at the time, Trawick concluded that "the drug quantity calculation contained within the plea agreement -- approximately 1134 grams of methamphetamine (equivalent to two and one-half pounds) -- was consistent with the evidence" and with Owens' statements to Trawick. (Id. ¶ 8.)

In a hearing on May 8, 2008, Harris, represented by Trawick, pleaded guilty to count two of the superseding indictment. (Docket Nos. 87, 102.) The Court placed Harris under oath, informed him that he could speak with Trawick in private at any time during the hearing, and assessed Harris's competency to plead guilty. (May 8, 2008, Hr'g Tr. at 3-10, Docket No. 102.) Harris testified that he had read the superseding indictment, and he informed the Court that "[his] counsel, Mr. Trawick, has adequately discussed the counts that I've been indicted with[.]" (Id. at 10.) The Court then inquired:

The Court: And you've had enough time to have him answer your questions and talk about the case?

[Harris]: Yes, Your Honor. He's pretty much always available and been an available resource.

The Court: So you've been satisfied with the advice and assistance he's provided to you?

[Harris]: That's correct, Your Honor. (Id.) Later in the hearing, he testified that he had had the opportunity to meet with Trawick approximately seven times, and that they had spoken over the phone and had "gone over a lot of material." (Id. at 15.)

Counsel for the government then questioned Harris. Harris admitted that in 2006 he became involved with a group of individuals who were trafficking in controlled substances. (Id. at 10.) Among those individuals were Glen Forehand, Anthony Jantz, and Jeremy Berndt. (Id. at 11.) Harris admitted that his role was "to distribute some drugs for Mr. Forehand and also to take over the keeping track of the business of the drug distribution." (Id. at 12.) He admitted that at the time of his arrest, his vehicle contained a "detailed drug ledger addressing the operations of Mr. Forehand's group and then a loaded handgun." (Id. at 13.) He admitted that he "had grown to know what [the group] w[as] doing" with respect to operating a drug trafficking organization and that after he had that knowledge, he "agreed to become involved with them." (Id.) Counsel then asked:

[Counsel]: In terms of the quantity that you're agreeing to you're responsible for for this group, it's two and a half pounds of methamphetamines; is that true?

[Harris]: That's correct, [counsel].

[Counsel]: And in terms of the firearm, you're agreeing that the firearm was possessed in furtherance of that drug trafficking crime; is that also true?

[Harris]: Yes, [counsel]. (Id. at 13-14.) He further admitted that the purpose of his involvement with the group was to assist the group in drug trafficking. (Id. at 15.) The Court then inquired about the drug quantities:

The Court: Is there any dispute about drug quantities in this case?

[Trawick]: I don't think so, Your Honor.

The Court: I think the plea agreement states responsibility for at least two and a half pounds of methamphetamines. And will there be any objection to that amount?

[Trawick]: I don't think so, Your Honor. Everything I found, the data that I found collectively -- there may be an argument at another point in time, as far as [allocation] of that portion, but the conspiracy, itself, I believe we're pretty clear it was in excess of 500 grams. (Id. at 16.) Counsel for the government added that the plea agreement Harris was signing indicated that he agreed that he had responsibility for at least 500 grams of methamphetamine. (Id.)

The Court then informed Harris of its preliminary calculation of the guideline range for sentencing. (Id. at 18-19.) The Court informed Harris that the "ten-year mandatory minimum comes into play here, too. It doesn't look like there's a way for The Court to sentence beneath the mandatory minimum." (Id. at 19.) Harris stated that he understood this sentencing information.*fn1 (Id.) The Court then asked Harris whether there was "anything about the plea agreement that you don't understand?" (Id. at 20.) Harris responded, "No, Your Honor. I understand all of it." (Id. at 21.) The Court then informed Harris of the rights he was waiving by agreeing to plead guilty, including his right to challenge the evidence against him:

You have the right to challenge the evidence that the Government has in this case and would be prepared to introduce and use against you during the trial. But when you plead guilty, then that evidence will be used to support your conviction. And you can't challenge it at a later time. And by challenge it, I mean challenge as to whether it was collected improperly or would be otherwise inadmissible in court as evidence used to support your guilt. (Id. at 22.) Harris confirmed that he understood that by entering a plea of guilty he was waiving his rights. (Id. at 25.)

Before the Court accepted the change of plea, counsel for the government questioned Harris about his previous withdrawal of his guilty plea:

[Counsel]: Mr. Harris, we were here sometime ago, . . . and you had withdrawn your not guilty plea. Do you remember that day?

[Harris]: Yes, [counsel].

[Counsel]: And now you're standing here pleading guilty under substantially the same plea ...

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