United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge
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.
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; (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
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.
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.
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
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
Fair Sentencing Act and First Step Act
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.
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
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).
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.