United States v. Harris

          Amber M. Brennan, Assistant United States Attorney, Counsel for Respondent.

          Petitioner, pro se.

          MEMORANDUM OPINION AND ORDER

          Michael J. Davis, United States District Court.

         This 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.

         I. Procedural History

         On 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.

         Prior 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).

         Petitioner 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].)

         Prior 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.

         The 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 Petitioner.

         Based 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.

         The 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.

         Petitioner filed a Notice of Appeal, but later moved to dismiss his Appeal, which motion was granted.

         On March 27, 2017, Petitioner filed the instant petition, claiming his defense counsel provided ...