                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                  No. 13-1741
                                 _____________

                       UNITED STATES OF AMERICA

                                        v.

                            JAMES M. HARRIS, III,
                               a/k/a James Smalls,
                              a/k/a James Gunplay,

                                   James M. Harris, III,
                                             Appellant
                                 ____________


                 On Appeal from the United States District Court
                          for the District of New Jersey
                             (No. 1-11-cr-00783-004)
                   District Judge: Honorable Renée M. Bumb

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              November 22, 2013

                                 ____________

           Before: AMBRO, SMITH, and CHAGARES, Circuit Judges

                            (Filed: December 4, 2013)

                                 ____________

                                   OPINION
                                 ____________


CHAGARES, Circuit Judge.
       James M. Harris, III appeals his convictions for conspiracy to commit robbery

affecting interstate commerce and conspiracy to distribute and possess with intent to

distribute cocaine on the grounds that the District Court erred by not suppressing

evidence. Harris also appeals his sentence, arguing that the District Court should have

granted his request for minor and minimal role adjustments and his motion for a

downward departure based on sentencing entrapment and sentencing factor manipulation.

For the reasons that follow, we will affirm the judgment of conviction and sentence.

                                             I.

       We write solely for the parties and will therefore recount only those facts that are

essential to our disposition. In January 2012, a grand jury returned a superseding

indictment charging Harris (also known as “Gunplay” and “Smalls”) and three others1

with conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) and

conspiracy to distribute and possess with intent to distribute five kilograms or more of

cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The charges arose

from Harris’s involvement in a plan to rob a cocaine stash house, which — unbeknownst

to Harris and his co-conspirators — was devised by special agents of the Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”).

       In early July 2011, a confidential source reported to the ATF that Shawn Cannon

was responsible for a series of violent robberies of drug dealers and users in southern

New Jersey. The confidential source arranged for Cannon to meet with undercover ATF

1
 Harris’s co-defendants were Shawn L. Cannon, Zealeeta Francis, and Henry D. Morgan.
Harris was the only defendant to proceed to trial. Co-conspirator Lamont Howard was
separately charged.
                                             2
Agent Stacy Brown. At the meeting, which was held on July 18, 2011 in a parking lot in

Pennsauken, New Jersey, Brown pretended to be a disgruntled cocaine courier for a

Mexican drug trafficking organization who was looking for help with robbing his source

of supply.2 Brown explained that his job entailed picking up kilogram quantities of

cocaine3 from different stash houses near Cherry Hill, New Jersey, which were usually

occupied by two armed guards. Brown emphasized that the guards were dangerous, and

he needed an experienced crew. Cannon responded, “[y]ou got the right people.”

Appendix (“App.”) 902. Francis also assured Brown that she and Morgan were “trained

to go.” App. 905.

      Follow-up meetings were held on July 20, 2011. At the first meeting, Cannon

announced that six people would be involved in the robbery. Brown expressed his desire

to meet the remaining participants, and Cannon indicated that another meeting could be

arranged with his “back up soldiers,” including “Gunplay” (Harris) and “Rambo”

(Morgan). App. 469-70, 948. During the second meeting, which occurred later that day,

Harris asked Brown several pointed questions about the robbery, such as what kind of

guns the guards carried and whether there would be lookouts around the stash house.

When Brown remarked that the cocaine had to be removed from its original wrapper

before being resold, Harris acknowledged, “[t]here’s a stamp.” App. 957. Before the



2
  Henry Morgan drove Cannon and Zealeeta Francis to the parking lot, but remained in
the car for the duration of the encounter.
3
  Brown “guarantee[d]” Cannon (and Francis, who also attended the meeting) that there
would be at least fifteen “bricks” (kilograms) of cocaine in the stash house. Appendix
(“App.”) 449-50, 718-19, 901-02.
                                            3
meeting ended, Harris stated that he was “ready” and described the intended robbery as

“another day at the job.” App. 975.

       Between July 20 and 27, 2011, Brown maintained phone communication with

Cannon and Francis, who in turn communicated with Harris. Harris met again with his

co-conspirators on July 27 and during the morning on July 28. At approximately 12:30

p.m. on July 28, Brown called Francis and informed her that he was ready to execute the

plan. Brown instructed Francis to get the rest of the crew together and to meet him at the

Cherry Hill Mall. Although Francis complied with Brown’s request,4 ATF surveillance

of a conversation between Brown, Cannon, and Francis upon Cannon and Francis’s

arrival showed that Cannon and Francis were becoming suspicious of Brown and

believed him to be a law enforcement officer. The robbery was not carried out, and the

co-conspirators parted ways several days later.

       At 6:00 a.m. on December 21, 2011, approximately nine ATF agents arrived at

Harris’s home with a warrant for his arrest. Harris was handcuffed and put into the back

seat of a police patrol vehicle parked outside. Three or four agents then spoke with his

parents, James Harris, Jr. (“Mr. Harris”) and Esther Harris (“Mrs. Harris”), in the living

room. ATF Special Agent Greg Sheridan asked Harris’s parents to consent to a search of

the house. Mrs. Harris refused and urged Mr. Harris to do the same. Mr. Harris agreed

to consent but expressed concern about possible damage to the property. Sheridan

advised Mr. Harris that he could limit the scope of the search to Harris’s room. Mr.


4
 Harris drove Cannon, Francis, and an unindicted individual to the mall parking lot in his
car. Morgan and two others arrived in a separate vehicle.
                                             4
Harris then reviewed and signed a consent-to-search form on which he wrote “garage

only” (where Harris was living at the time). App. 34.5

       After obtaining Mr. Harris’s written consent to search, Sheridan separately

approached Harris, who was still handcuffed in the police vehicle, to obtain permission to

search his bedroom and car. Because he believed Harris was too dangerous to be

released, Sheridan did not remove the handcuffs to permit Harris to complete a written

consent form. Harris orally consented to the requested searches. While searching

Harris’s room, the agents found one red sweatshirt with the word “Gunplay” and one

black ballistic vest.

       Harris moved before trial to suppress both items. An evidentiary hearing was

held, and, on October 10, 2012, the District Court orally denied the motion on the

grounds that the warrantless search was conducted pursuant to Mr. Harris’s valid consent.

Following a six-day jury trial, Harris was convicted of both conspiracy counts.

       The United States Probation Office prepared a presentence investigation report

(“PSR”). The PSR calculated that Count One (conspiracy to commit Hobbs Act robbery)

carried an offense level of 21, U.S.S.G. § 2B3.1(a), (b)(6), and that Count Two (drug

conspiracy) carried an offense level of 36, id. § 2D1.1(b)(1), (c)(3). PSR ¶¶ 60-61.

Because the offense level for Count One was nine or more levels less serious than that for

Count Two, Probation disregarded Count One and adopted a total offense level of 36.

5
  Sheridan testified that Mr. Harris was calm and coherent and did not appear to be
frightened, distressed, or under the influence of drugs or alcohol. Mr. Harris testified that
he initially refused to sign the form, but “gave up” when the agents threatened to “tear
[the] walls apart” in the event he refused. App. 171-72, 191. At the time he was
presented with the form, Mr. Harris was not handcuffed.
                                              5
PSR ¶ 62.6 Observing that Harris “appears to have been the least involved in the

conspiracy,” Probation awarded him a two-level minor role adjustment on both counts.

PSR ¶¶ 65, 75-78, 81-84; see U.S.S.G. § 3B1.2(b). Harris’s final offense level of 34,

combined with a criminal history category of I, yielded an advisory Guidelines range of

151 to 188 months of imprisonment. PSR ¶¶ 97, 105, 134. Both parties objected to the

PSR calculations. The Government challenged the minor role reductions, and Harris

argued that his minimal role in the drug conspiracy warranted a four-level adjustment on

that count. Harris also moved for a two-level downward departure for sentencing

entrapment “and/or” sentencing factor manipulation. Supplemental Appendix (“Supp.

App.”) 141.

       Harris’s sentencing hearing was held on March 7, 2013. At the hearing, the

District Court agreed with the Government that Harris was neither a minor nor a minimal

participant in the charged conspiracies. The court therefore held that Harris’s final

offense level was 36, which, combined with his criminal history category of I, resulted in

an advisory Guidelines range of 188 to 235 months of imprisonment. The court next

addressed Harris’s departure motion. While it assumed it had the authority to depart

downwardly on the grounds of sentencing entrapment and sentencing factor

manipulation, the court declined to do so. After considering the factors set forth in 18

U.S.C. § 3553, the court imposed a within-Guidelines sentence of 211 months of


6
  See U.S.S.G. § 3D1.4(c) (“Disregard any Group that is 9 or more levels less serious
than the Group with the highest offense level. Such Groups will not increase the
applicable offense level but may provide a reason for sentencing at the higher end of the
sentencing range for the applicable offense level.”).
                                             6
imprisonment on each count, to be served concurrently, plus a five-year term of

supervised release and a $200 special assessment. Harris timely appealed.

                                              II.7

       Harris first argues that the District Court should have granted his pretrial motion to

suppress the items seized in his bedroom on the day of his arrest. In reviewing the denial

of a motion to suppress, we examine the District Court’s factual findings for clear error

and review its legal determinations under a plenary standard. United States v. Brownlee,

454 F.3d 131, 137 (3d Cir. 2006).

       “It is . . . well settled that one of the specifically established exceptions to the

requirements of both a warrant and probable cause is a search that is conducted pursuant

to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). To justify a search

based on consent, the Government bears the burden of proving that the consent was

“freely and voluntarily” given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968). In

determining voluntariness, courts consider “the age, education, and intelligence of the

subject; whether the subject was advised of his or her constitutional rights; the length of

the encounter; the repetition or duration of the questioning; and the use of physical

punishment.” United States v. Price, 558 F.3d 270, 278 (3d Cir. 2009).

       Harris primarily attacks the constitutionality of the search on the grounds that Mr.

Harris’s consent to the search was “[o]verr[iden]” by Mrs. Harris’s refusal to consent.




7
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                               7
Harris Br. 14.8 Harris relies on Georgia v. Randolph, 547 U.S. 103 (2006), where the

Supreme Court held that “a physically present co-occupant’s stated refusal to permit

entry . . . render[s] the warrantless search unreasonable and invalid as to him.” Id. at 106.

Harris concedes that Randolph did not resolve — and neither the Supreme Court nor this

Court has since considered — the effect of objections to a search by persons other than

the defendant. See id. at 120 n.8; Harris Br. 19. He argues, however, that Mrs. Harris’s

refusal to consent must be considered “as a factor” in evaluating the validity of Mr.

Harris’s consent. Harris Br. 19.

       The District Court found that Mrs. Harris’s refusal to consent was relevant to, but

not “dispositive” of, the validity of Mr. Harris’s consent. App. 325. There is ample

evidence to support the court’s conclusion that Mr. Harris’s consent was voluntary, such

as Mr. Harris’s age (fifty-three), level of education completed (high-school), experience

with the criminal justice system (two prior felony convictions and additional arrests), and

— perhaps most importantly— signature on a consent form that he read and evidently

understood. As a result, we hold that the District Court did not err in denying Harris’s

motion to suppress.9

                                            III.

                                             A.

8
  The Government argues, incorrectly, that Harris failed to raise and has thus waived this
argument. Harris’s argument on appeal (that Mrs. Harris’s refusal of consent affects the
validity of Mr. Harris’s consent) was copied, verbatim, from Harris’s memorandum in
support of his motion to suppress. Compare Harris Br. 19, with Supp. App. 40-41.
Accordingly, it has not been waived.
9
  The District Court did not, and this Court need not, reach Harris’s argument that his oral
consent was involuntary.
                                             8
       Harris’s second argument is that he was entitled to downward adjustments for his

allegedly minor and minimal roles in the robbery and drug conspiracies, respectively.

“We employ a mixed standard of review when considering whether a defendant was

entitled to a base level reduction for being a minimal or minor participant in the criminal

activity.” United States v. Carr, 25 F.3d 1194, 1208 (3d Cir. 1994). When a district

court’s denial of a downward adjustment is based primarily on a legal interpretation of

the Guidelines, we exercise plenary review. Id. Where, as here, the denial is based

primarily on factual determinations, we review only for clear error. Id.

       Under the advisory Sentencing Guidelines, a defendant’s offense level may be

reduced by two levels if the defendant was a “minor participant,” U.S.S.G. § 3B1.2(b),

and by four levels if the defendant was a “minimal participant,” in any criminal activity,

id. § 3B1.2(a). A “minor participant” is one who “is less culpable than most other

participants, but whose role could not be described as minimal.” Id. cmt. n.5. A

“minimal participant” is one who “plays a minimal role in concerted activity.” Id. cmt.

n.4. The minimal participant reduction is “intended to cover defendants who are plainly

among the least culpable of those involved in the conduct of a group.” Id. In

determining whether a defendant’s role was minimal or minor, courts consider “the

nature of the defendant’s relationship to other participants, the importance of the

defendant’s actions to the success of the venture, and the defendant’s awareness of the

nature and scope of the criminal enterprise.” United States v. Rodriguez, 342 F.3d 296,

299 (3d Cir. 2003) (quotation marks omitted).



                                             9
       As an initial matter, we summarily reject Harris’s argument that he was

erroneously denied a two-level adjustment for his minor role in the robbery conspiracy

charged in Count One. Even assuming the District Court made a mistake, the error was

harmless — even with the adjustment, his total offense level would have remained the

same pursuant to the PSR’s application of U.S.S.G. § 3D1.4(c). See PSR ¶ 62.10

       Moreover, the District Court’s decision not to apply either adjustment was not

erroneous. The evidence available to the District Court at sentencing showed that Harris

participated in all but two of the six meetings in preparation for the robbery, including

one with the undercover ATF agent. While Harris was not as vocal as his co-conspirators

during the meeting with Brown, he asked several pointed questions about the intended

target, including whether it was protected by lookouts and if the guards inside would be

armed. Morgan testified at trial that, on the day of the robbery, Harris was carrying a

black ski mask and black baseball gloves. The court found that these details contradicted

Harris’s averment that his intended role in the robbery was limited to serving as a

getaway driver. The court concluded that Harris’s role was no different than Morgan’s or

Howard’s11 and denied his request for a minor role adjustment on Count One. The court

similarly held, in rejecting Harris’s request for a minimal role adjustment on Count Two,

that the above evidence showed Harris “clearly” understood the “scope and the structure

of the conspiracy and the enterprise.” App. 878.


10
   Harris did not challenge, and the District Court incorporated, the PSR’s grouping
analysis.
11
   The Government conceded that Cannon and Francis were more culpable than the other
defendants due to their leadership role in the conspiracy.
                                             10
       “[W]hen the district court’s decision is based on testimony that is coherent and

plausible, not internally inconsistent and not contradicted by external evidence, there can

almost never be a finding of clear error.” United States v. Igbonwa, 120 F.3d 437, 441

(3d Cir. 1997). The District Court’s denial of Harris’s requests for minor and minimal

role adjustments easily satisfies this standard. We will therefore affirm its calculation of

Harris’s total offense level.

                                             B.

       Harris’s final argument is that the District Court erred in rejecting his motion for a

downward departure based on sentencing entrapment and sentencing factor manipulation.

The District Court assumed,12 but declined to exercise, its authority to depart downwardly

on these grounds. App. 880-81. Accordingly, we lack jurisdiction to review the District

Court’s ruling. United States v. Isaac, 655 F.3d 148, 158 (3d Cir. 2011) (“[I]n contrast to

determining whether a sentence is reasonable, appellate courts lack jurisdiction over the

merits of a district court’s discretionary decision not to depart downward from the

Guidelines once it is determined that the district court properly understood its authority to

grant a departure.”).

                                             IV.

       For the foregoing reasons, we will affirm Harris’s judgment of conviction and

sentence.




12
  This Court has neither adopted nor rejected the doctrines of sentencing entrapment and
sentencing factor manipulation. United States v. Sed, 601 F.3d 224, 229 (3d Cir. 2010).
                                             11
