                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
__________________________________
                                   )
UNITED STATES OF AMERICA,          )
                                   )
      v.                           )
                                   )    Criminal Action No. 05-93 (RMC)
SAQUAWN L. HARRIS,                 )
                                   )
            Defendant.             )
__________________________________ )

                                  MEMORANDUM OPINION

               In 2008 the Court sentenced Saquawn Harris to 78 months of incarceration for

unlawful possession with intent to distribute 5 grams or more of cocaine base. At the time of

sentencing, the statutory range for that offense was 5-40 years. That range has now been reduced

to 0-20 years, with a corresponding shift in the guidelines’ recommendation, and the First Step

Act gives the Court discretion to modify its sentence accordingly. Mr. Harris moves for an

exercise of that discretion. The Court will deny the motion.

                                     I.   BACKGROUND

           A. Facts

               In March 2008 Mr. Harris plead guilty to one count of unlawful possession with

intent to distribute 5 grams or more of cocaine base (crack cocaine), see 21 U.S.C. § 841(b), and

one count of unlawful possession of a firearm by a felon, see 18 U.S.C. § 922(g). As part of the

plea, Mr. Harris agreed that he was responsible for the distribution of 13.1 grams of crack

cocaine. For its part, the government agreed to recommend a two-point downward adjustment

for acceptance of responsibility and to not seek “any increase in [Mr. Harris’] base offense level”

other than those already included in the plea. In the course of their negotiations, both parties

understood that under the sentencing guidelines Mr. Harris faced (1) a base offense level of 24;


                                                 1
(2) a two-point upward adjustment for the gun; and (3) a two-point downward adjustment for his

acceptance of responsibility, bringing his total adjusted offense level to 24. Factoring in his

category IV criminal history, Mr. Harris’ guidelines range was expected to be 77-96 months.

               After Mr. Harris entered his plea, the probation office drafted a Presentence

Investigation Report (PSR) in preparation for sentencing. As with the parties, it calculated a

base offense level of 24 and a two-point upward adjustment for the gun. However, the probation

office also determined that two of Mr. Harris’ prior convictions—for robbery with a dangerous

weapon and for threatening to injure with a deadly weapon, both in Maryland—were felony

crimes of violence. These two felonies made Mr. Harris a “career offender” under the

guidelines, automatically increased his criminal history category to VI, and automatically

increased his base offense level to 34. See United States Sentencing Commission, Guidelines

Manual, §4B1.1(b) (2007). His acceptance of responsibility brought his total adjusted offense

level down to 32, but with a category VI criminal history his guidelines range was 210-262

months.

               Upon review of the PSR, Mr. Harris moved to withdraw his guilty plea. Although

Mr. Harris’ attorney was aware that his Maryland robbery conviction was a felony, neither he

nor the government knew of the conviction for threatening to injure or its effect on sentencing.

In part this was because information regarding Mr. Harris’ misdemeanor criminal record was

missing from his file. In part this was also because of a quirk of Maryland law: although

threatening to injure with a deadly weapon is labeled a misdemeanor, it is a misdemeanor with a

sentence of up to 18 months, making it a felony under the guidelines.1


1
  Prior to pleading guilty, counsel for Mr. Harris asked him if he had been convicted of other
felonies. Mr. Harris, not understanding the legal distinction at play, truthfully answered that he
had not.

                                                 2
               The Court noted that Mr. Harris had agreed during his plea colloquy to accept the

judgment of the Court regardless of whatever agreement he and the government otherwise

reached. However, the Court also determined that sentencing Mr. Harris as a career offender,

based on a mistake of law that neither his attorney nor the prosecutor were aware of, would

“promote disrespect for law.” Emergency Mot. to Reduce Sentence Pursuant to the First Step

Act of 2018 (Mot.), Ex. A, Sentencing Tr. [Dkt. 63-2] at 24:25-25:1. The Court thus denied Mr.

Harris’ motion to withdraw his guilty plea but imposed a sentence “closer to what the defendant

anticipated getting.” Id. at 24:23-24. Mr. Harris received 78 months’ incarceration on both

counts, to run concurrently, with a 4-year term of supervised release on each count to run

concurrently. Mr. Harris did not appeal and has not moved for post-conviction relief.

               Mr. Harris was subsequently convicted in D.C. Superior Court on one count of

conspiracy, one count of first-degree murder while armed, two counts of assault with intent to

kill while armed, and related firearms charges. In November 2009 he received multiple

consecutive sentences totaling 800 months’ incarceration.

           B. Fair Sentencing Act and First Step Act

               Previously, a person convicted of possessing with intent to distribute more than 5

grams of crack cocaine faced a mandatory minimum sentence of 5 years imprisonment and a 40-

year statutory maximum. In 2010, Congress passed the Fair Sentencing Act, Pub. L. No. 111-

220, 124 Stat. 2372 (2010), Sections 2 and 3 of which eliminated the mandatory minimum for

offenses involving fewer than 28 grams of crack cocaine and set the statutory maximum at 20

years. Compare 21 U.S.C. § 841(b)(1)(B) (2009), with 21 U.S.C. § 841(b)(1)(B) (2018). This

change did not apply retroactively and so afforded Mr. Harris no relief.

               In 2018, however, Congress passed the First Step Act, Pub. L. No. 115-391, 132

Stat. 5194, 5222 (2018). Under Section 404(b) of the First Step Act, “[a] court that imposed a
                                                3
sentence for a covered offense may, on motion of the defendant . . . impose a reduced sentence as

if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense

was committed.” Id. § 404(b). A “‘covered offense’ means a violation of a Federal criminal

statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing

Act . . . , that was committed before August 3, 2010.” Id. § 404(a). In short, the First Step Act

gives district courts the authority to retroactively apply reduced sentences for “the unlawful

possession of five grams or more of crack cocaine with the intent to distribute it.” United States

v. Mitchell, No. 5-cr-110, 2019 WL 2647571, at *3 (D.D.C. June 27, 2019).

                                                * * *

                Mr. Harris currently has a projected release date of February 11, 2070. He now

seeks relief under Section 404(b) of the First Step Act. In addition to reducing his sentence, he

asks the Court to run his federal sentence concurrent with his 800-month sentence from D.C.

Superior Court. The government opposes. The matter is ripe for review.2

                                        II.   ANALYSIS

                A brief note on the applicable factors to be considered by the Court: The First

Step Act makes clear that sentence reductions are within the district court’s discretion. See First

Step Act § 404(c) (“Nothing in this section shall be construed to require a court to reduce any

sentence pursuant to this section.”). The First Step Act does not make clear what factors should

inform that exercise of discretion. To fill in this gap, other courts in this district have relied on

the traditional sentencing factors found at 18 U.S.C. § 3553(a) as guideposts. See United States

v. White, No. 93-cr-97, 2019 WL 3719006, at *25 (D.D.C Aug. 6, 2019); Mitchell, 2019 WL


2
  See Mot. [Dkt. 63]; Gov’t’s Opp’n to Def.’s Emergency Mot. to Reduce Sentence Pursuant to
the First Step Act of 2018 (Opp’n) [Dkt. 69]; Reply to Gov’t’s Opp’n to First Step Act Mot.
(Reply) [Dkt. 70].

                                                   4
2647571, at *7. The parties here do too. See Opp’n at 8; Reply at 3. The Court finds no reason

to depart from this practice.

               Mr. Harris’ revised guidelines computation also merits discussion. As discussed

previously, the parties initially believed Mr. Harris had a base offense level of 24 with a criminal

history category IV, corresponding with a guidelines range of 77-96 months. The probation

office determined that Mr. Harris was a career offender facing over 25 years incarceration; this

bumped his offense level to 34 and his criminal history to category VI. With two points off for

acceptance of responsibility, see USSG §4B1.1(b), his actual guidelines range was 210-262

months.

               Applying the Fair Sentencing Act’s revised penalties, Mr. Harris’s offense would

have come with a base offense level of 18. With a two-point upward adjustment for the gun, a

two-point downward adjustment for acceptance of responsibility, and assuming a criminal

history of category IV, his revised guidelines range, accepting the facts in his plea agreement,

would have been 41-51 months. However, even with the revised penalties Mr. Harris would still

have qualified as a career offender. Because the revised statutory maximum is now 20 years for

his offense, see 21 U.S.C. § 841(b)(1)(C), Mr. Harris’ base offense level would have been

adjusted to 32 with a criminal history of category VI. Less two points for his acceptance of

responsibility, his guidelines range would have been 168-210 months.

               In his motion, Mr. Harris asks that the Court now ignore his career offender status

because he does not qualify under the current standard. That is, when Mr. Harris was indicted in

2007, the definition of a “crime of violence” included a residual clause capturing “conduct that

presents a serious potential risk of physical injury to another.” USSG §4B1.2 (2007). Mr.

Harris’ misdemeanor in Maryland so qualified because he was convicted for repeatedly stabbing



                                                 5
another inmate with a homemade knife. That residual clause has since been removed, meaning

that, other than convictions for certain specified crimes, a crime of violence conviction must

have “as an element the use, attempted use, or threatened use of physical force.” USSG

§4B1.2(a) (2019). Mr. Harris argues that his conviction for threatening to injure does not include

such an element because, under controlling Maryland precedent, “[a]s long as the defendant

wears or carries the weapon with the requisite intent to harm someone, the crime is fully

consummated,” “even if no human being, other than the defendant himself, [is] anywhere within

a ten-mile radius.” Sullivan v. State, 132. Md. App. 682, 689 (Ct. Sp. App. 2000).

               The First Step Act permits courts to “impose a reduced sentence as if sections 2

and 3 of the Fair Sentencing Act were in effect at the time.” First Step Act § 404(b) (emphasis

added). This is a retrospective look and the Court will not consider subsequent changes to the

guidelines not made retroactive in its analysis. Indeed, this comports with the Sentencing

Commission’s policy statement regarding amended guidelines ranges, which recommends courts

“leave all other guideline application decisions unaffected.” U.S.S.G §1B1.10(b)(1), p.s. This

leaves Mr. Harris’ guidelines range at 168-210 months.3

               Conversely, Mr. Harris includes his 2009 Superior Court conviction in his revised

criminal history calculation, placing him in category V. Mot. at 8. This would raise his

guidelines range, without the career offender adjustment, from 41-51 months to 51-63 months;

he asks the Court to sentence him at the upper end of this range. But this calculation is mooted


3
 In the abstract, sentencing Mr. Harris based on this residual clause might raise some concerns
after Johnson v. United States, 135 S. Ct. 2551 (2015), which found a similar residual clause
used as an element in a criminal statute void for vagueness. However, the Court notes that Mr.
Harris was sentenced after United States v. Booker, 543 U.S. 220 (2005), meaning that his
guidelines sentence was discretionary, not mandatory, and is “not amenable to a vagueness
challenge.” Beckles v. United States, 137 S. Ct. 886, 894 (2017). It is also clear to the Court that
Mr. Harris’ conduct in the underlying misdemeanor was violent.

                                                 6
by application of the career offender provision, which automatically places Mr. Harris in

criminal history category VI. More to the point, for the same reason as above, the Court finds it

appropriate to leave in place the guideline application decisions made in 2008.

               Even if he is treated as a career offender, Mr. Harris asks the Court to vary below

the applicable guidelines range and cites a host of cases in which defendants, previously

sentenced as career offenders, were sentenced otherwise because they no longer qualified. The

government does not contest the Court’s authority to vary in this manner. However, the Court

has already varied downward in this case to an extent larger than Mr. Harris’ examples. What

Mr. Harris asks for is an even greater variance than he received before.

               In its discretion, the Court will not reduce or otherwise modify Mr. Harris’

sentence. The Court’s reasoning under the § 3553(a) factors can be found in the sentencing

transcript and holds true today. See generally Sentencing Tr., Ex. A, Mot. [Dkt. 63-2]. The

Court sentenced Mr. Harris to 78 months, at the low end of his anticipated guidelines range of

77-96 months, because the Court declined to impose a higher sentence (210-262 months) as a

career offender. That leniency in sentencing is all that the facts support.

                                    III.   CONCLUSION

               For the reasons stated, Mr. Harris’ Emergency Motion to Reduce Sentence

Pursuant to the First Step Act of 2018, Dkt. 63, will be denied. A memorializing Order

accompanies this Memorandum Opinion.




Date: December 11, 2019
                                                              ROSEMARY M. COLLYER
                                                              United States District Judge



                                                  7
