United States District Court, D. Minnesota
M. Brennan, Assistant United States Attorney, Counsel for
Petitioner, pro se.
MEMORANDUM OPINION AND ORDER
Michael J. Davis, United States District Court.
matter is before the Court upon the petition of Anthony
Harris to Vacate, Set Aside, or Correct his Sentence pursuant
to 28 U.S.C. § 2255.
September 10, 2015, Petitioner pleaded guilty to Count 1 of
the Indictment which charged conspiracy to distribute more
than 1, 000 kilograms of a mixture and substance containing a
detectable amount of marijuana and 500 grams or more of a
mixture and substance containing a detectable amount of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), (b)(1)(B) and 846.
to sentencing, the United States Probation Office prepared a
Presentence Investigation Report (“PSR”) advising
that the total offense level for the crime of conviction was
35 and that his criminal history category was III. In
calculating the applicable guideline range, the probation
office found that the base offense level was 30 based on
Petitioner's stipulation that he was responsible for more
than 1, 000 but less than 3, 000 kilograms of marijuana. The
probation office also applied a two level enhancement because
Petitioner possessed a dangerous weapon, § 2D1.1 (b)(1),
a two level enhancement for maintaining a drug premises,
§ 2D1.1(b)(12), and a four level enhancement for
aggravating role, § 3B1.1(a).
objected to the two level enhancement for possession of a
dangerous weapon and the two level enhancement for
maintaining a premises for the purpose of manufacturing or
distributing drugs. (Position on Sentencing [Doc. No. 173].)
to sentencing, the Court held an evidentiary hearing during
which it heard testimony from Special Agent Kylie Williamson
from the Bureau of Alcohol, Tobacco and Firearms. Agent
Williamson testified as to her participation in the
investigation of Petitioner's crimes and the search
warrant executed at the apartment he shared with Sarah Conner
in San Diego, California. As a result of the search, law
enforcement found packaging materials in a bedroom closet,
more packaging material and a digital scale in the bathroom
and a .22 caliber Smith & Wesson in Petitioner's
bedroom closet. In addition, Williamson testified that Ms.
Conner told investigators that Petitioner allowed her to live
in the apartment rent-free in exchange for her packaging and
shipping controlled substances for Petitioner.
Court also presided over the trial of co-defendant Kevin
Brown. At trial, Ms. Conner testified that the materials
found in the apartment she shared with Petitioner were the
materials she used to ship controlled substances for the
on testimony of Agent Williamson and the evidence presented
at the trial of co-defendant Kevin Brown, the Court found
sufficient evidence had been presented upon which to base the
enhancement for possession of a dangerous weapon and for
maintaining a drug premises.
Court granted Petitioner's motion for downward departure
pursuant to § 4A1.3(b)(1), finding that a criminal
history category III over-represented Petitioner's
criminal history and the likelihood he would reoffend. The
Court found the applicable guideline range to be 188 to 235
months, based on a total offense level 35, category II. The
Court varied down from this guideline range and sentenced
Petitioner to a term of imprisonment of 144 months, followed
by five years supervised release.
filed a Notice of Appeal, but later moved to dismiss his
Appeal, which motion was granted.
March 27, 2017, Petitioner filed the instant petition,
claiming his defense counsel provided ...