United States v. Harris

          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 ...