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UNITED STATES v. HARRINGTON

July 12, 1990

UNITED STATES OF AMERICA
v.
KELVIN HARRINGTON, Defendant



The opinion of the court was delivered by: OBERDORFER

 On June 29, 1989, a jury found Kelvin Harrington guilty of distribution of cocaine base and possession with intent to distribute cocaine and cocaine base. On September 14, 1989, the Court imposed a guideline sentence of 97 months incarceration, but vacated that sentence a few hours later that day. See Transcript of September 14, 1989 ("Sept. Tr.") (filed Sept. 21, 1989) at 1. On the same day, the Court also vacated a sentence of 108 months incarceration imposed on September 11, 1989, on DeWayne Shorter and deferred sentencing of Kevin D. Jameson, both of whom had been convicted of drug offenses. On June 27, 1990, the Court sentenced Harrington to the mandatory minimum term of 60 months imprisonment pursuant to 21 U.S.C. § 841(b), with an additional four year term of supervised parole. Judgment Including Sentence Under the Sentencing Reform Act (filed June 29, 1990). On June 27, 1990, the Court also sentenced DeWayne Shorter to a sentence within the guideline range, stating considerations that distinguished Harrington's case from Shorter's and indicating that they would be the subject of a memorandum to be filed. Transcript of June 27, 1990 ("June Tr."). This is that memorandum with respect to defendant Harrington, which, pursuant to 18 U.S.C. § 3553(c)(2), sets forth the specific reasons for the June 27, 1990 imposition of a sentence outside the guidelines range.

 I.

 A.

 Kelvin Harrington is a 30-year-old drug addict who has been using drugs since he was 17 years old. *fn1" On April 6, 1989, he was arrested and charged with the offenses for which he was later found guilty. It was his first offense or arrest. Following arrest he was released to third party custody, subject to electronic monitoring. From May 10 to June 28, 1989, he participated in Operation Progress, a drug treatment program sponsored by the D.C. Department of Corrections. Clinton R. Boyd, Chief, Office of Rehabilitative Services, D.C. Department of Corrections, reported that:

 
On May 24, 1989, Mr. Harrington secured employment on his own initiative with Temporary Personnel Pool Services, located in Arlington, Virginia. He was a Pool Technician Helper and his salary was $ 5.00 per hour.
 
Evaluation
 
Mr. Harrington complied with the mandated [sic] of the Program. He was able to focus on his situation and was able to display a level of maturity while he was in the program.
 
He displayed a desire to become a productive member of society. With continued counselling and vocational training, he could advance to a correction where he would not return to illegal means to maintain himself economically.
 
Recommendation
 
Based on Mr. Harrington's successful participation while in Operation Progress and his willingness to comply with the rules and regulations, it is respectfully requested that insightful consideration be given to him during sentencing that is consisted [sic] with his present adjustments.

 Letter from Clinton R. Boyd (February 9, 1990) at 2.

 The probation officer who prepared Harrington's Presentence Report (without benefit of the Operation Progress report) found the mandatory minimum sentence prescribed by Congress to be 60 months and the guideline range to be 97 to 121 months; he recommended a sentence of 97 months followed by four years of supervised release on the condition that during release Harrington participate in drug treatment. Presentence Report at 12. *fn2"

 In the proceeding on the morning of the 14th, Harrington's appointed counsel stated:

 
. . . I am disturbed, given the fact that [the Guidelines] called for an exposure of anywhere from 8 to 12 years, given that this is Mr. Harrington's first offenses [sic], and in reviewing the sentencing guidelines and the Commission's statements on them, it is clear that, unless the Court feels that it can depart for the lack of defendant's criminal history, that the Court would have to give a sentence in that range.
 
. . . The defendant did go to trial, but he insisted all along that he was innocent of both offenses, that he was not the person who did the sale on March 30th, nor did he possess the crack and the cocaine that was found in the kitchen in the house where he was present, along with two other individuals.
 
The defendant is as [sic] high school graduate, he did have something of a work history prior to his arrest in these cases, and while he was a drug user, the defendant maintains that he was never a seller.
 
. . . In any event, given all that, that is why we would ask the Court to consider whether or not it could depart from the guidelines and go downward . . .

 Sept. Tr. at 2-3.

 Harrington then addressed the Court, repeating counsel's request for a downward departure from the Guidelines and further stating:

 
I never possessed anything and I feel that, as far as me being a drug addict, this isn't the way that a problem should be handled. I need help, not incarceration, and it has taken me this to get help. . . . Right now it is a bad time as far as . . . being involved in any type of drug thing, but I am not a dealer that possessed all of these so-called thousands of dollars and all of these grams of cocaine.

 Harrington's case was one of a series of sentencing hearings of drug addict defendants in a brief time span in which the Sentencing Guidelines appeared to the Court to require sentences substantially greater than the very substantial minimum sentences mandated by Congress. Increasingly concerned as to whether the Sentencing Guidelines did, or could validly, mandate such sentences in first offender drug addict cases where the potential for successful drug treatment was high, and recognizing how difficult it was for court-appointed lawyers, or the Court itself, adequately to evaluate the relevant jurisprudence and literature, the Court appointed Bruce Baird, Esq., a former Assistant United States Attorney in the Southern District of New York and now a member of the firm of Covington and Burling, as amicus curiae to address the question of whether such sentences were required by law. For these reasons, later on the ...


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