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UNITED STATES v. HARRIS

July 27, 1995

UNITED STATES OF AMERICA
v.
JEFFREY J. HARRIS, Defendant.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE

 Before the Court in the above-entitled case is the Defendant's Motion to Vacate, Set Aside and/or Modify his Sentence and the Government's Opposition thereto. Upon careful consideration of the parties' pleadings, the entire record herein, and the law applicable thereto, the Court shall deny the Defendant's Motions.

 I. BACKGROUND

 The Defendant, an inmate at the FPC Cumberland in Cumberland, Maryland pursuant to his conviction on narcotics-related offenses, files the instant Motion pro se claiming that his sentence is unconstitutional. Briefly, the circumstances surrounding the Defendant's conviction and sentencing are as follows.

 On January 29, 1991, a federal grand jury returned a six-count indictment charging the Defendant with two counts of unlawful distribution of 100 Grams or more of phencyclidine (PCP), one count of distribution of one kilogram or more of PCP, and three other related counts. On the day of trial, April 10, 1991, the Defendant pleaded guilty to all six counts. The Defendant was thereafter sentenced by this Court to a term of 121 months of imprisonment. The Defendant did not appeal his sentence. A co-defendant, Desi Green, stood trial and was convicted on one count of distribution of PCP. Green was sentenced to a term of 163 months of imprisonment.

 Now, four years later, the Defendant challenges his sentence, asserting that he was denied effective assistance of counsel. He asserts five separate arguments. The Defendant's first two claims relate to his plea of guilty. The Defendant claims that his counsel committed error by improperly advising him to plead guilty to the entire indictment without investigating the facts surrounding his status as a "mule" and failing to advise him of the sentence he would be exposed to should he plead guilty to all of the offenses charged in the indictment.

 The Defendant's other claims relate to his sentencing. He claims that his counsel committed error by failing to present mitigating circumstances to undermine the Government's position at sentencing; failing to proffer to the Court the Defendant's role as "mule," and failing to proffer to the Court that the Defendant's crimes were singular acts of aberrant behavior justifying a departure from the Sentencing Guidelines.

 The Defendant's contentions are belied by the record. After Counsel for the Government gave a statement of the evidence that it would have proffered had the case gone to trial, the Court, as part of its FED. R. CRIM. P. 11 colloquy, inquired of the Defendant:

 
The Court: Mr. Harris, do you have anything you wish to add or correct concerning the statement of evidence just made by the Assistant United States Attorney, Robert Walker?
 
Mr. Harris: No, Your Honor.
 
The Court: Then I take it you understood everything just stated to the court and that it is true and correct.
 
Mr. Harris: Yes, Your Honor.

 Transcript of Guilty Plea Proceedings ("Tr.") at 16 (April 10, 1991). The Court further inquired:

 
The Court: . . . . Are you entering your plea of guilty to each of these crimes and in each of these counts of this indictment knowingly, freely, [and] voluntarily . . . because you are guilty in fact, and for no other reason?
 
Mr. Harris: Yes, Your Honor.
 
The Court: Have you discussed the entry of this plea of guilty to each of these crimes in this indictment fully and completely with your attorney, Mr. Seltzer?
 
Mr. Harris: Yes, Your Honor.
 
The Court: Are you fully and completely satisfied with his services as your attorney and counselor-at-law in connection with this case?
 
Mr. Harris: Yes, Your Honor.

 Tr. at 26. Notwithstanding the clarity of the record to the contrary, the Defendant now challenges the effectiveness of his counsel's performance. The Government, in its Opposition, argues that the Motion is patently frivolous, that counsel was effectively rendered and that, regardless, the Defendant admitted his guilt when faced with ...


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