United States v. Harris, No. 16-1023 (7th Cir. 2016)

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In 2013, Harris was part of a group of armed robbers. He robbed a Schererville, Indiana T‐Mobile store, an Addison, Illinois Sprint store; and a LaPorte, Indiana AT&T store. He was charged in Indiana state court for the LaPorte robbery. Harris received a target letter informing him that he might be charged in federal court for the Addison robbery. A federal public defender was appointed, but failed to advise him or his state defense attorney of the progress of the federal proceedings. Harris pled guilty in state court in December 2013 and was later charged in federal court. After serving three years, Harris pled guilty to federal charges of robbery and brandishing a firearm, stipulating that he committed the Schererville robbery and agreeing to its consideration as relevant conduct. The parties agreed to a lower sentencing guideline range, recommending grouping Harris’ state conviction as part of his federal case rather than as a separate conviction to ameliorate federal defense counsel’s failure to communicate. The district court concluded that the state conviction was part of Harris’s criminal history rather than a grouped offense in his federal case and sentenced Harris to an additional 160 months in federal custody to run concurrently with his state court sentence. The Seventh Circuit affirmed, upholding the court’s rejection of a “hypothetical guideline range” to compensate for the public defender’s error.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 1023 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MARCUS SHEROD HARRIS, Defendant Appellant, ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Case No. 13 CR 952 — Charles P. Kocoras, Judge. ____________________ ARGUED NOVEMBER 4, 2016 — DECIDED DECEMBER 7, 2016 ____________________ Before FLAUM and KANNE, Circuit Judges, and MAGNUS STINSON, District Judge. MAGNUS STINSON, District Judge. Marcus Harris commit ted three armed robberies in 2013, two in Indiana and one in Illinois. He was arrested and charged in state court for one of Of the Southern District of Indiana, sitting by designation. 2 No. 16 1023 the Indiana robberies. While the Indiana case was pending, federal authorities sent Harris a target letter concerning the Illinois robbery. Harris requested and was appointed a federal public defender, but his federal public defender failed to ad vise Harris or his state defense attorney of the progress of the federal proceedings before his guilty plea and sentencing in Indiana state court. He was later charged by federal indict ment and pled guilty in federal court to the Illinois robbery, and stipulated to the uncharged Indiana robbery as relevant offense conduct. At his federal sentencing, the parties agreed that Harris’ federal public defender’s failure to update him about the fed eral proceedings prejudiced Harris because had he not been convicted in state court, and had all of the robberies been charged in one federal proceeding, his sentencing guideline range in his federal court case would have been lower. The parties agreed to a hypothetical guideline range to compen sate for the federal public defender’s error. Harris claims that the district court committed procedural error when it failed to accept the hypothetical guideline range or to explain why it rejected it. We disagree and affirm his sentence. I. BACKGROUND In 2013, Harris committed three armed robberies as a member of an organized group of armed robbers: 1) on Janu ary 28, 2013, he robbed a T Mobile store in Schererville, Indi ana; 2) on January 31, 2013, he robbed a Sprint store in Addi son, Illinois; 3) and on February 4, 2013, he robbed an AT&T store in LaPorte, Indiana. Shortly after the last robbery, he was arrested by Indiana authorities and charged in state court for the robbery in LaPorte. While in state custody, Harris received a target letter from federal authorities informing him that he No. 16 1023 3 might be charged in federal court for the robbery in Addison. In early March 2013, Harris requested and was appointed a federal public defender to represent him with respect to any federal charges. The parties agreed that his federal public de fender failed to advise him or his state defense attorney of the progress of the federal proceedings.1 Harris pled guilty in state court on December 20, 2013, and was sentenced to ten years in prison on January 24, 2014. On February 6, 2014, Harris was charged by federal indictment for the robbery in Addison and for brandishing a firearm dur ing the robbery. On January 8, 2015, he pled guilty to Count 2 for robbery and Count 3 for brandishing a firearm. As part of the plea agreement, he stipulated that he committed the rob bery in Schererville and agreed to its consideration as relevant conduct for purposes of the sentencing guidelines. On December 10, 2015, the district court conducted Harris’ sentencing. Harris’ counsel pointed out that the parties agreed to a lower sentencing guideline range because they recom mended grouping Harris’ conviction in state court as though it were part of his federal case rather than as a separate state court conviction. This hypothetical guideline calculation would have resulted in an adjusted offense level of 28 and a criminal history category of III, which would have given the district court a hypothetical sentencing guideline range of 97 to 121 months for Count 2. The parties agreed that this hypo thetical sentencing guideline range was a way to ameliorate 1 A criminal complaint was filed in federal court on December 6, 2013, and it detailed three robberies, including the robbery in Addison. It named two codefendants and referenced several potential unnamed codefendants. Harris was later identified as one of the unnamed codefendants when he was charged by federal indictment on February 6, 2014. 4 No. 16 1023 the federal public defender’s failure to notify Harris or his state defense attorney about the federal proceedings. The par ties also raised other considerations, including that Harris had already served three years of his state court sentence and that his federal sentence should run concurrently with his state court sentence. After considering the parties’ recommendation, the dis trict court determined that because Harris did plead guilty in state court, that conviction was part of his criminal history ra ther than a grouped offense in his federal case. Given this fact, the district court calculated an adjusted offense level of 272 and a criminal history category of IV, which resulted in a guideline range of 100 to 125 months for Count 2 with a man datory consecutive sentence of 84 months for Count 3. Reject ing the Government’s recommendation of 204 months, the district court calculated a sentence of 196 months—112 months for Count 2 and 84 months consecutive for Count 3— but it reduced the sentence by 36 months to give Harris credit for the three years that he served in state custody. The district court sentenced Harris to a total of 160 months in federal cus tody to run concurrently with his state court sentence. II. ANALYSIS Harris argues that the district court erred when it failed to adopt the hypothetical sentencing guideline range or explain why it rejected it. Harris reiterates that the parties agreed to this recommendation because of the error by Harris’ federal public defender. 2 The District Court applied the 2015 Sentencing Guidelines, which re sulted in a lower offense level. No. 16 1023 5 In response, the Government claims that the district court did address this issue and that it gave Harris every consider ation that he requested in his sentence. The Government as serts that the district court’s treatment of Harris’ Indiana con viction as a prior conviction and not as a stipulated offense was proper under the Guidelines. We review de novo a district court’s sentencing procedures. United States v. Howard, 729 F.3d 655, 664 (7th Cir. 2013). The district court commits procedural error by not adequately ex plaining its choice of sentence. United States v. Spiller, 732 F.3d 767, 769 (7th Cir. 2013) (citing United States v. Schlueter, 634 F.3d 965, 966–67 (7th Cir. 2011)). It must show that it exercised its discretion by commenting on a defendant’s principal argu ments that are “not so weak as not to merit discussion;” how ever, “little explanation is necessary when a court decides to impose a sentence within the Guidelines range.” Howard, 729 F.3d at 664 (citations omitted). At the outset of Harris’ sentencing hearing, the district court acknowledged the parties’ hypothetical guideline calcu lation. The district court noted, however, that because Harris had in fact been convicted in state court, his adjusted offense level was 27 and his correct criminal history category was IV, which resulted in a sentencing guideline range of 100 to 125 months. The district court further explained that whether it followed the parties’ recommendation or not, it was aware of the difference and indicated that it was under no obligation to adopt the hypothetical sentencing guideline range because the state court conviction had actually occurred. Thus, the dis trict court sufficiently considered the issue and committed no error. See United States v. Gary, 613 F.3d 706, 711 (7th Cir. 2010) (“The district court is required only to consider the argument, 6 No. 16 1023 at least to the extent it pointed to anything unusual about … [the] circumstances, and to provide a sufficient explanation of its treatment of the issue.”). In addition, the district court afforded Harris considerable leniency in determining his sentence. After considering the parties’ arguments and the sentencing factors pursuant 18 U.S.C. § 3553(a), the district court concluded that the proper sentence for Harris was 196 months. It then subtracted 36 months to account for the three years that Harris had served in state custody, which resulted in a sentence of 160 months. It further ordered the sentence to run concurrently with his state court sentence. The sentence imposed was below both the hypothetical and actual guideline ranges. We therefore conclude that the district court committed no error, ade quately addressed Harris’ arguments, and sufficiently ex plained its below guidelines sentence. Harris further claims that after the district court imposed his sentence, it failed to ask whether it addressed the parties’ main arguments as directed by United States v. Garcia Segura, 717 F.3d 566 (7th Cir. 2013). In Garcia Segura, we encouraged district courts to inquire whether defense counsel is satisfied that the court has addressed the defense’s principal argu ments after imposing a sentence but before advising the de fendant of his right to appeal. Id. at 569. Although the district court did not make this specific inquiry, it did inquire of each party whether the court had omitted anything. Harris clearly understood the import of this inquiry, as he responded by ask ing if the court would order that the sentence begin immedi ately and if the court would recommend a facility near Chi cago. The district court affirmatively responded to both re No. 16 1023 7 quests. We find no error, as Harris was both given an oppor tunity to respond, and did respond, following the district court’s determination of his sentence. In any event, the district court’s shorthand question here would be harmless error—if any—given that Harris was able to appeal the sentencing issue rather than having it deemed waived. See United States v. Cruz, 787 F.3d 849, 850 (7th Cir. 2015) (“[Defendant’s] arguments were waived when, at the end of the sentencing hearing, the judge asked if he had ad dressed all of the arguments, and [Defendant’s] lawyer an swered yes.”). III. CONCLUSION For the reasons noted above, we AFFIRM Harris’ sentence.

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