United States v. Harris

UNITED STATES OF AMERICA v. DONTE ROLANDO HARRIS, Defendant.

Criminal No.: ELH-02-0381

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

December 30, 2020

MEMORANDUM OPINION

Donte Rolando Harris filed a pro se "Motion for Modification of an Imposed Term of Imprisonment, Alternately, Motion for Sentence Reduction Pursuant to the First Step Act of 2018 - 18 U.S.C. 3582(c)(1)(A)." ECF 278. Thereafter, through counsel, Harris filed a "Motion for a Sentence Reduction Pursuant To 18 U.S.C. § 3582(c)(1)(A)(i)." ECF 290 (collectively, the "Motion"). The Motion is supported by twelve exhibits. ECF 290-1 to ECF 290-12.

Harris, who is now 46 years of age, has been incarcerated since August 2002. He is serving a sentence of 50 years for a series of armed robberies, imposed in January 2004 by Judge William Nickerson.¹ Harris seeks either immediate release or a reduction of his sentence to 25 years, due to "extraordinary and compelling reasons" that, in his view, warrant compassionate release.

The government opposes the Motion. ECF 297. Defendant has replied. ECF 299. He also filed three supplements. ECF 301; ECF 302; ECF 303. And, on December 16, 2020, defendant's counsel informed the Court that defendant recently tested positive for COVID-19. ECF 303.

No hearing is necessary to resolve the Motion. For the reasons that follow, I shall grant the Motion, in part. I shall reduce the total sentence to 30 years.

I. FACTUAL BACKGROUND²

On January 23, 2003, Harris and four codefendants were charged in a twenty-three count Second Superseding Indictment. See ECF 297-3.³ In particular, Harris was charged with conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371; bank robbery, in violation of 18 U.S.C. § 2113(a), (d) & (f); aiding and abetting, in violation of 18 U.S.C. § 2; and using, carrying, brandishing and possessing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).

On March 24, 2003, Harris entered his first guilty plea. See ECF 297-4 (Presentence Report, "PSR") at 3. He pleaded guilty to conspiracy to commit bank robbery (Count One); bank robbery (Count Two); and brandishing a firearm in furtherance of a crime of violence (Count Three). Id. Notably, in the plea agreement, the parties agreed to a total sentence of 25 years'imprisonment. Id. ¶ 4. However, on April 15, 2003, Harris sent a letter to the Court, expressing his desire to withdraw his guilty plea. ECF 75. A new lawyer was appointed for Harris and, following a hearing at which Harris was represented by his new lawyer, Judge Legg allowed him to withdraw his plea of guilty. ECF 112.

As a result, Harris proceeded to a jury trial, beginning on January 5, 2004, at which Judge Nickerson presided. See Docket. During the first week of trial, the government presented more than 40 witnesses. Then, Harris again expressed interest in entering a plea of guilty. By that point, his Presentence Report (ECF 297-4) had already been prepared, in anticipation of sentencing in accordance with the first guilty plea.

According to that PSR, Harris had a combined adjusted offense level of 32, based on all of the bank robberies. Id. ¶ 115. The PSR did not include any deductions for acceptance of responsibility. Id. ¶ 116. Further, the PSR indicated that defendant qualified as a Career Offender under U.S.S.G. § 4B1.1, based on three prior convictions for crimes of violence. Id. ¶ 118. Notably, and as discussed, infra, the predicate offenses were two burglary convictions and one daytime housebreaking conviction. Id. ¶ 118. Moreover, the PSR reported that defendant agreed that he qualified as a Career Offender. Id. ¶ 5. As a result, the defendant had a final offense level of 34. Id.

The PSR recounted Harris's criminal history. According to the PSR, Harris was convicted on two occasions in 1992, when he was 17 years of age. Id. ¶¶ 122, 123. In particular, he was convicted of theft and daytime housebreaking, for which he was sentenced to one year incarceration and to fifteen months' imprisonment, respectively. Id. In 1994, the defendant was convicted of "Burglary-Intent to Steal-Night," for which he received an eight-year sentence, with all but 18 months suspended. Id. ¶ 124. In 1995, Harris was found guilty of nighttime burglary, forwhich he was sentenced to eight years' imprisonment, with all but 18 months suspended. Id. ¶¶ 125. He violated his probation for the offenses referenced in ¶¶ 124 and 125 and, on November 1, 1995, he received concurrent sentences of five years' incarceration. Id. Then, in 1996, Harris was convicted of unauthorized use and malicious destruction. Id. ¶ 126. He received a total sentence of five and a half years of imprisonment, consecutive to the sentence imposed for the offense in ¶ 124. Harris was paroled in 2000. Id. ¶¶ 124, 125.

These criminal convictions resulted in a total of 14 criminal history points. Id. ¶ 127. Two points were added because the underlying bank robbery offenses were committed while defendant was on parole, and one point was added because the underlying offenses were committed less than two years after Harris was released from custody. Id. ¶¶ 128, 129. Thus, Harris had seventeen criminal history points, which equated to a Criminal History category of VI. Id. ¶ 130. Alternatively, as a result of his status as a Career Offender, Harris had a Criminal History Category of VI. Id. ¶ 131.

Harris entered a plea of guilty on January 12, 2004. According to the Judgment (ECF 122), Harris pled guilty to Counts Two, Three, Four, Five, Six, Eight, Ten, Twelve, Fourteen, Sixteen, Eighteen, Twenty, and Twenty-Two of the Second Superseding Indictment. Counts Three and Five charged using, carrying, and brandishing a firearm on January 11, 2002 and February 12, 2002, respectively, during and in relation to a crime of violence. The remaining counts charged bank robbery and aiding and abetting between January 11, 2002 and July 29, 2002. The parties stipulated to a total sentence of 50 years' imprisonment. ECF 297 at 2.

Harris proceeded directly to sentencing. At the time of sentencing, Harris was 29 years of age. See ECF 297-4 at 1. According to the PSR, Harris reported that he was in good health. Id. ¶ 153.

Judge Nickerson sentenced Harris to concurrent terms of 18 years for the robbery charges (Counts Two, Four, Six, Eight, Ten, Twelve Fourteen, Sixteen, Eighteen, Twenty, and Twenty Two). Count Three, by statute, required a mandatory, consecutive sentence of seven years' imprisonment, and Count Five required a mandatory, consecutive sentence of 25 years' incarceration. Thus, the Court sentenced Harris to a total term of 50 years of imprisonment. ECF 122. Despite the length of the sentence, Judge Nickerson indicated that the Plea Agreement was "very favorable" to Mr. Harris, in light of "the overwhelming evidence against him and the even longer sentence that would be imposed had he been convicted at trial." ECF 156 at 2 (citing Transcript of January 12, 2004 at 19).

Harris subsequently filed for post conviction relief under 28 U.S.C. § 2255. See ECF 134; ECF 140. In a Memorandum Opinion docketed March 8, 2006 (ECF 156), Judge Nickerson recounted the history of the case. He noted that Harris participated in eleven armed bank robberies between January and August 2002, some of which included the actual or planned abduction of bank employees. Judge Nickerson denied the petition for post conviction relief. See ECF 157 (Order of March 8, 2006).

Harris filed a second motion under § 2255 on November 22, 2006. ECF 172. It was denied on December 6, 2006. ECF 173; ECF 174. Then, on June 16, 2016, Harris filed a motion seeking relief under Rule 60(b) of the Federal Rules of Civil Procedure. ECF 239. Judge Nickerson regarded that motion as "a successive [§ 2255] petition." ECF 244 at 2. He dismissed the motion by Memorandum and Order of May 30, 2017. ECF 244; ECF 245.

In 2017, Harris also filed for habeas relief in the Southern District of Indiana. According to the government, relief was denied in that matter. See ECF 271 at 1 n.1 (citing Case No. 2:17-CV-00338-JMS-MJZ).

Harris again filed a motion for declaratory relief on August 2, 2019, challenging his conviction and sentence. ECF 261. By Memorandum and Order of March 2, 2020, I construed the motion as an unauthorized, successive § 2255 petition and denied it. ECF 275; ECF 276.

Harris, who was born in 1974, is now 46 years of age. He was recently transferred from USP Marion, a high security facility, to FCI Memphis, a medium security facility. ECF 301. Harris has served over 18 years of his 50-year sentence, which equates to about 36% of his sentence, exclusive of good time credits under 18 U.S.C. § 3624(b). ECF 290 at 1. His projected release date, according to the Bureau of Prisons ("BOP"), is June 11, 2048. Id. at 4. Defendant would be about 74 years of age at that time.

Harris's medical records reflect various health issues, including high blood pressure, prediabetes, and kidney disease. ECF 292 (Medical Records). Harris is also overweight with a BMI of 29. Id. at 2. Notably, Harris tested positive for COVID-19 on December 16, 2020. ECF 303.

The defendant filed a claim with the Warden seeking compassionate release in May 2020. ECF 290-1. Defendant's claim was denied. ECF 290-2. Harris's appeal was also denied. See ECF 290-4.

II. STANDARD OF REVIEW

Ordinarily, a court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c); see United States v. Chambers, 956 F.3d 667, 671 (4th Cir. 2020); United States v. Jackson, 952 F.3d 492, 495 (4th Cir. 2020); United States v. Martin, 916 F.3d 389, 395 (4th Cir. 2019). But, "the rule of finality is subject to a few narrow exceptions." Freeman v. United States, 564 U.S. 522, 526 (2011). One such exception is when the modification is "expressly permitted by statute." 18 U.S.C. § 3582(c)(1)(B); see Jackson, 952 F.3d at 495.

Commonly termed the "compassionate release" provision, 18 U.S.C. § 3582...