United States District Court, D. Colorado
ORDER GRANTING GOVERNMENT'S MOTION FOR
RECONSIDERATION
William J. Martinez United States District Judge
This
matter is before me on the Government's Motion for
Reconsideration of the Order Setting Re-Opened Sentencing
Hearing. (ECF No. 271.) For the reasons set forth below this
motion, with enormous frustration, is granted.
I.
BACKGROUND
On
October 24, 2018, I held a sentencing hearing in this case,
at which time I sentenced Defendant Rodrick Harris to a
custodial prison term of 66 months. I sentenced Mr. Harris
based on his conviction by guilty plea to Count Two of the
Indictment, which charged him with Distribution and
Possession with Intent to Distribute a Mixture and Substance
Containing a Detectable Amount of Cocaine Base, in violation
of 21 U.S.C. § 841(a)(1) & (b)(1)(C). To date, the
written judgment of conviction for Mr. Harris has not been
entered.
Almost
immediately after adjourning Mr. Harris's sentencing
hearing-indeed, as I walked back into my chambers-I began to
have significant doubts about the substantive reasonableness
of the 66-month sentence I had just imposed. I thereafter
engaged in a careful re-evaluation and reconsideration of the
record in this case, including the arguments of counsel and
my colloquy with them at the sentencing hearing, as well as
my own reasons for deciding in the first instance that the
goals of the sentencing statute required a variant sentence
below the advisory guideline sentencing range of 87-108
months.
I
ultimately concluded that the 66-month custodial sentence I
announced orally at Mr. Harris' sentencing hearing is not
a substantively reasonable sentence. I freely acknowledge
that I erred in imposing that sentence on Mr. Harris. In
reaching my reconsidered decision that a 66-month sentence
exceeds the bounds of substantive reasonableness under the
circumstances, I was particularly influenced by the
following:
• The uncontroverted record evidence establishes an
extensive and years-long history of physical abuse of Mr.
Harris, which he endured as a child and an adolescent. The
record also reflects that, in 2017, Mr. Harris was seen at
the Stout Street Clinic in Denver, and as result of his
treatment evaluations there, he was diagnosed with
schizophrenia, depression, anxiety, and post-traumatic stress
disorder;
• The appellate authority that makes clear, and as I
have held on numerous occasions in the course of sentencing
scores of defendants, these historical characteristics of Mr.
Harris, which include his physical abuse and trauma as a
youth, as well as his documented history of mental illnesses,
are legitimate grounds in and of themselves for a downward
variance. United States v. Wallace, 605 F.3d 477,
479 (8th Cir. 2010) (district court properly considered under
18 U.S.C. § 3553(a) the extensive physical abuse the
defendant suffered as a child); United States v.
Wyrick, 416 Fed.Appx. 786 (10th Cir. 2011) (district
court properly considered the role defendant's mental
illness played in his offense as a factor under §
3553(a));
• The relevant charged conduct underlying Mr.
Harris's guilty plea consists of about a half-dozen sales
of street level, small or user quantities of a controlled
substance made, not to a general member of the public, but
during a carefully orchestrated series of drug sales to a
confidential informant;
• The lack of evidence in the record establishing, or
even suggesting, that any of the relevant charged conduct
included violence or a threat of violence;
• My policy disagreements with the Guidelines with
respect to the sentencing range applicable to this charged
conduct, as I detailed at the initial sentencing hearing, and
which I expressly incorporate here by reference; and
• The express concession by the Government in its
Response to Mr. Harris's Motion for a Downward Variance
(ECF No. 260) that, although Mr. Harris is the first-named
defendant in this four-defendant prosecution, he
“played a less-significant role than some of his co-
defendants[.]” Id. at 3. This concession by
the prosecution is consistent with another critical
sentencing fact which it also candidly acknowledged,
viz., that “[t]he defendant was distributing
small amounts of crack cocaine consistent with user amounts
or small sub-distribution amounts.” Id.
After
considerable additional reflection and weighing of the
factors just enumerated here, it became my reconsidered view
that-subject to the Government's opportunity to persuade
me otherwise-a custodial sentence of 42
months more accurately reflects a proper application
of the § 3553(a) sentencing factors to this Defendant,
more faithfully comports with my policy disagreements with
the applicable sentencing Guideline, and most closely adheres
to § 3553's parsimony clause-that the custodial
sentence I impose on Mr. Harris be no greater than necessary
to, among other things, reflect the seriousness of the
offense, adequately deter Mr. Harris from future criminal
conduct, and protect the public from further crimes by Mr.
Harris.
Given
this error, I wanted to rectify my mistake as quickly as I
could, especially because something as precious as a
person's freedom, and the length of time he is deprived
of that freedom, remained squarely at stake. On October 25,
2018 (the day after the sentencing), my staff e-mailed
counsel for the Government, counsel for Mr. Harris, and the
probation officer, announcing my intent to re-open the
sentencing hearing due to my conclusion that Mr. Harris's
66-month sentence was greater than necessary to accomplish
the goals of sentencing. The following day, I ...