                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2009

USA v. Percy Harris
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2478




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Recommended Citation
"USA v. Percy Harris" (2009). 2009 Decisions. Paper 1295.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1295


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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 08-2478
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                    PERCY HARRIS,

                                                Appellant.
                                   _______________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                 (D.C. No. 05-cr-00481)
                    District Judge: Honorable Christopher C. Conner
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 20, 2009

            Before: FUENTES, JORDAN, and NYGAARD, Circuit Judges.

                                 (Filed : May 28, 2009)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Percy Harris challenges the Order of the United States District Court for the

Middle District of Pennsylvania denying his motion for a sentence reduction under 18

U.S.C. § 3582(c)(2). On appeal, he argues that the District Court erred by neglecting to
consider the applicability to his sentence of the factors listed in 18 U.S.C. § 3553(a).

Because Harris was not eligible for a reduction, we will affirm.

I.     Background

       We write for the parties, who are familiar with the factual background of the case

and thus recount only those facts that are relevant to our disposition.

       On March 22, 2006, Harris pled guilty to one count of distribution and possession

with intent to distribute cocaine base and cocaine hydrochloride and one count of

forfeiture. According to the Probation Office’s presentence report (“PSR”), Harris was

responsible for 23.68 kilograms of cocaine base and 77.54 kilograms of cocaine

hydrocholoride. As a result, his offense level was 35 and his sentencing range was 210 to

240 months’ imprisonment.1 Harris did not contest the Probation Office’s findings as to

the weight of the drugs, and the Court adopted those findings for sentencing purposes.

The Court sentenced Harris to 240 months.

       After the United States Sentencing Commission instituted a retroactive two-level

guideline reduction for crack cocaine offenses, Harris moved to have his sentence

reduced pursuant to 18 U.S.C. § 3582(c)(2). The Court concluded that he was ineligible

for a reduction and denied the motion. This timely appeal followed.




       1
The calculations actually resulted in a sentencing range of 210 to 262 months, but the
upper end was reduced to the statutory maximum of 240 months. See 21 U.S.C.
§ 841(b)(1)(A).

                                              2
II.    Discussion 2

       Under 18 U.S.C. § 3582(c), courts are generally prohibited from modifying terms

of imprisonment once they are imposed. An exception exists, however, for “defendant[s]

who ha[ve] been sentenced ... based on a sentencing range that has subsequently been

lowered by the Sentencing Commission ... .” Id. § 3582(c)(2). As Harris correctly notes,

Amendment 706 has the effect of lowering the sentencing ranges for defendants

convicted of cocaine base crimes. See U.S.S.G., app. C, amend. 706 (2007). However,

its scope is limited by Amendment 715, which provides that the “reduction ... shall not

apply in a case in which ... the offense involved 4.5 [kilograms] or more ... of cocaine

base.” 3 U.S. Sentencing Commission Notices, 73 Fed. Reg. 23,521 (Apr. 30, 2008).

       Harris’s sentence was based on the uncontested finding that he was responsible for

distributing and possessing with intent to distribute 23.68 kilograms of crack cocaine. By

the plain language of Amendment 715, Amendment 706 does not apply to Harris.

Because his sentence is not “based on” a sentencing range that the Sentencing

Commission lowered, the Court rightly concluded that it lacked the authority to reduce his


       2The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231.
Our jurisdiction arises under 28 U.S.C. § 1291. The District Court ruled that it lacked the
authority to reduce Harris’s sentence under 18 U.S.C. § 3582(c)(2), which presents a legal
issue subject to de novo review. See United States v. Edwards, 309 F.3d 110 (3d Cir.
2002) (“Our review over legal questions concerning the proper interpretation of the
Sentencing Guidelines is plenary.” (internal citation omitted)).

      3Amendment 715 was made retroactive by Amendment 716, as of May 1, 2008.
U.S. Sentencing Commission Notices, 73 Fed. Reg. 23,521 (Apr. 30, 2008); see also
United States v. Starks, 551 F.3d 839, 840 n.4 (8th Cir. 2009).

                                             3
sentence. 18 U.S.C. 3582(c)(2). Thus, Harris’s only argument on appeal – that the Court

should have examined whether the § 3553(a) factors counseled in favor of lowering his

sentence – is misplaced. The Court could not consider the effect of § 3553(a) on Harris’s

sentence because it had no authority to do so.

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s Order denying

Harris’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).




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