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United States v. Harmon

United States District Court, D. Maryland

March 10, 2017

UNITED STATES OF AMERICA Plaintiff,
v.
DONTAYE LEE HARMON Defendant Criminal Action No. ELH-13-0296

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge

         Dontaye Lee Harmon was indicted on June 11, 2013 (ECF 1) and charged, inter alia, with conspiracy to distribute more than 280 grams of cocaine base, in violation of 21 U.S.C. § 846. Mr. Harmon entered a plea of guilty to that offense on February 28, 2014 (ECF 155), pursuant to a plea agreement. ECF 156 (“Plea Agreement”). Notably, the offense to which Mr. Harmon pleaded guilty carries a mandatory minimum term of imprisonment of ten years, and a maximum of life imprisonment. See 21 U.S.C. § 841(b)(1)(A); see also ECF 156, ¶ 3.

         On June 29, 2016, Mr. Harmon filed a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. ECF 251; ECF 251-1 (Memorandum) (collectively, the “Petition”). In his Petition, Mr. Harmon claims that he is entitled to relief pursuant to the decision of the Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015). ECF 251-1 at 1. In particular, he claims that his prior felony drug convictions were improperly used as predicate offenses, leading to his improper designation as a career offender. Id. at 1-2.[1]

         On July 28, 2016, Mr. Harmon asked the Court to hold his Petition in abeyance, pending the Supreme Court's review of Beckles v. United States. See ECF 257. The Supreme Court decided Beckles on March 6, 2017.

         The government filed its opposition to the Petition in September 2016. ECF 260. Mr. Harmon did not reply.

         For the reasons that follow, I shall DENY the Petition.

         I. Factual Background

         In paragraph 6(B) of the Plea Agreement, the parties stipulated that Mr. Harmon “is a career offender pursuant to U.S.S.G. § 4B1.1, because he has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” ECF 156 at 6. Further, the parties stipulated to a base offense level of 37 and a criminal history category of VI. Id.

         Notably, Mr. Harmon entered his plea of guilty pursuant to Fed. R. Crim. P. 11(c)(1)(C). See ECF 156, ¶ 7 at 7. Under the terms of the C plea, the parties stipulated to a sentence of imprisonment ranging from 120 months to 132 months of incarceration. In exchange for the defendant's plea of guilty, the government agreed not to file a notice of defendant's prior felony drug convictions, pursuant to 21 U.S.C. § 851. ECF 156, ¶ 9 at 7. As a result, the government agreed not to seek an enhancement of the mandatory minimum sentence of ten years (120 months).

         The Presentence Report (“PSR, ” ECF 163) reflects that the defendant had numerous prior felony drug convictions, all in the Circuit Court for Baltimore City. In particular, in 1995, Mr. Harmon was convicted of possession with intent to distribute heroin and possession with intent to distribute cocaine (id., ¶¶ 42-44). In 1999, he was convicted of possession with intent to distribute cocaine (id., ¶¶ 46-48). And, in 1992, he was convicted of possession with intent to distribute cocaine. (id., ¶¶ 39-41).[2]

         As reflected in the PSR, Mr. Harmon qualified as a Career Offender. ECF 163, ¶ 30. After deductions for acceptance of responsibility, Mr. Harmon had a final offense level of 34. Coupled with a criminal history category of VI, his advisory sentencing guideline range called for a period of imprisonment ranging from 262 to 327 months. See PSR, ¶ 79; see also ECF 179, III. But, as noted, the C plea called for a sentence between 120 and 132 months' incarceration. If Mr. Harmon were not a career offender, he would have had a final offense level of 29 and a criminal history category of V. In that circumstance, his advisory guidelines would have called for a sentence of 140 to 175 months' incarceration.

         Sentencing was held on April 14, 2014. ECF 173. At sentencing, the Court imposed a term of imprisonment of 125 months - only five months more than the mandatory minimum sentence of 120 months and close to the low end of the C-plea range of 120 to 132 months' incarceration. ECF 178. Notably, the sentence was 137 months (i.e., more than eleven years) below the low end of Mr. Harmon's applicable advisory sentencing guideline range of 262 to 327 months' imprisonment. And, even if Harmon were not a career offender, the sentence of 125 months was 15 months below the guidelines for a non-career offender. Mr. Harmon did not note an appeal to the Fourth Circuit.

         II. ...


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