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;
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(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
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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.
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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
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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
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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].
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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
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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
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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.
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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
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