United States District Court, D. Maryland
L. Hollander United States District Judge.
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.
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
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.
government filed its opposition to the Petition in September
2016. ECF 260. Mr. Harmon did not reply.
reasons that follow, I shall DENY the Petition.
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.
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).
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., ¶¶
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.
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.