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UNITED STATES v. HARRINGTON

December 18, 1992

UNITED STATES OF AMERICA
v.
KELVIN HARRINGTON, Defendant.



The opinion of the court was delivered by: LOUIS F. OBERDORFER

 On June 29, 1989, defendant Kelvin Harrington was convicted on three counts for illegal distribution and possession with intent to distribute cocaine base. Although the guideline range applicable to defendant was 97 to 121 months, at sentencing the Court departed downward to require defendant to serve the statutory minimum term of 5 years, based on defendant's significant pretrial efforts at drug rehabilitation. The Court concluded that drug rehabilitation was an additional mitigating factor "of a kind . . . not adequately taken into consideration by the Sentencing Commission in formulating the guidelines," pursuant to 18 U.S.C. § 3553(b). *fn1" See United States v. Harrington, 741 F. Supp. 968 (D.D.C. 1990) ("Harrington I").

 On appeal, although the District of Columbia Circuit recognized that "Congress and the Commission have not squarely addressed the issue" of departure for drug rehabilitation, United States v. Harrington, 292 U.S. App. D.C. 90, 947 F.2d 956, 962 (D.C. Cir. 1991) ("Harrington II"),2 the court concluded that departure on this ground was inappropriate. Rather than hold that drug rehabilitation was an additional factor not adequately considered by the Commission, the Court of Appeals concluded that drug rehabilitation was encompassed in the provision for acceptance of responsibility. U.S.S.G. § 3E1.1. *fn3" On remand for resentencing, therefore, the Court of Appeals invited this Court to determine whether Harrington's rehabilitation efforts justify a two level reduction for acceptance of responsibility, pursuant to § 3E1.1.

 The Court of Appeals distinguished the decision of the Southern District of New York in United States v. Rodriguez, 724 F. Supp. 1118 (S.D.N.Y. 1989), which departed from the guidelines on the basis of the defendant's rehabilitation effort and personal characteristics. U.S.S.G. Ch. 5, Pt. H. Instead the court chose to "follow the lead" of its sister circuits, particularly United States v. Sklar, 920 F.2d 107, 115-117 (1st Cir. 1990), *fn4" that "post-offense but pretrial drug rehabilitation effort may justify a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1." Harrington II, 947 F.2d at 962.

 In conspicuous addition, the Court of Appeals stated that, "'on rare occasion,' a further reduction might be in order [pursuant to U.S.S.G. § 5K2.0], 'but only when and if the rehabilitation is "so extraordinary as to suggest its presence to a degree not adequately taken into consideration by the acceptance of responsibility reduction."'" Id., quoting Sklar, 920 F.2d at 116 (citation omitted) (emphasis added); see also United States v. Williams, 948 F.2d 706 (11th Cir. 1991). In Sklar, the First Circuit noted that § 5K2.0 establishes two routes to a valid departure:

 One avenue is qualitative: a district court may depart if it finds an aggravating or mitigating circumstance "of a kind" not considered by the Sentencing Commission in formulating the guidelines. The other avenue is quantitative: a district court may depart if it finds a material circumstance which, although considered by the Sentencing Commission, is present "to a degree" neither readily envisioned nor frequently seen in connection with the offender and/or the offense of conviction.

 920 F.2d at 115 (citations omitted). The D.C. Circuit in Harrington II rejected the district court's effort to depart from the guidelines on the first of these grounds, but invited reconsideration based on the second.

 In view of the foregoing, a sentencing court may find that a defendant's drug rehabilitation efforts justify a downward departure from the guidelines in two ways: by entitling the defendant to a two-level reduction pursuant to § 3E1.1, and "on rare occasion," by justifying full departure from the guidelines where a defendant's drug rehabilitation efforts are of a degree so extraordinary that ["in light of unusual circumstances, the guideline level attached to § 3E1.1] is inadequate." § 5K2.0.

 At the time the defendant was originally sentenced, the record may well have supported a specific finding that his efforts to free himself of the addiction were "extraordinary." The Court made no specific finding in those terms in the original sentencing decision, however. The D.C. Circuit instructed that, on remand, the district court should focus on Harrington's "post-offense but pretrial drug rehabilitation effort," Harrington II, 947 F.2d at 962 (emphasis added), and that defendant's pretrial efforts should be the "prime indicator of his acceptance of responsibility for criminal conduct." Id. at 963.

 Since that opinion was written, however, the Sentencing Commission amended the guidelines to allow consideration of "post-offense" rehabilitation efforts under § 3E1.1. *fn5" The Commission's decision to limit consideration to "post-offense" rehabilitation efforts, rather than to adopt the D.C. Circuit's more stringent limitation to "post-arrest but pretrial" rehabilitation, necessarily implies that all post-offense efforts prior to sentencing may be taken into consideration in Harrington's case. As required by U.S.S.G. § 1B1.11, "the resentencing will occur under the new version of the Guidelines unless such an application would violate the Ex Post Facto Clause of the Constitution." United States v. Hicks, 978 F.2d 722, 1992 U.S. App. LEXIS 28470 (D.C. Cir. November 3, 1992) at 16. As no such violation would occur here, the November 1, 1992 amendment to § 3E1.1 is controlling in this case. *fn6"

 In addition to the record before the Court at the original sentencing, the record now contains evidence of defendant's significant post-conviction rehabilitation efforts. Accordingly, the entire record is now reexamined on remand for further findings in light of the Court of Appeals opinion and the amended guidelines.

 I.

 The facts demonstrate dramatically that Harrington's rehabilitation efforts, both before his trial and in prison since, have been extraordinary "to a degree not adequately taken into consideration by the acceptance of responsibility reduction." Harrington II, 947 F.2d at 962. The opinions of this Court and the Court of Appeals, and the hearings since remand, report his successful struggle before and after his conviction to free himself of his addiction and to provide affirmative leadership for others whose addiction has led them to criminal conduct.

 At the time of Harrington's arrest on April 6, 1989, at age 29, he had been addicted to drugs for 12 years. He never before had been arrested. Prior to trial, he participated in Operation Progress, a drug treatment program sponsored by the D.C. Department of Corrections. Harrington I, 741 F. Supp. at 969. All Harrington's requisite pre-conviction urine samples were submitted and tested negative for illegal drugs. Clinton R. Boyd, Chief of the Office of Rehabilitative Services, D.C. Department of Corrections, rated Harrington's participation in the program as "excellent" and observed that Harrington participated with ...


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