Tyrone K. Harris v. United States

Citations: 204 F.3d 681; 2000 U.S. App. LEXIS 2776; 2000 WL 217706Docket: 97-4309

Court: Court of Appeals for the Sixth Circuit; February 25, 2000; Federal Appellate Court

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Tyrone K. Harris was sentenced to 87 months in prison after pleading guilty to possessing over 500 grams of cocaine with intent to distribute, violating 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(ii). Following his initial legal representation, Harris voluntarily dismissed an appeal of his sentence but later sought to vacate it under 28 U.S.C. § 2255, claiming ineffective assistance of counsel. His motion argued that his first attorney failed to contest how the presentence investigation report calculated his criminal history score and base offense level, particularly regarding Ohio misdemeanor convictions with 'PNC' sentences of one year or more.

The district court denied his motion, and Harris appealed. The appeal focused on whether his attorney should have raised objections to the criminal history calculations. Evidence showed that Harris engaged in cocaine sales alongside a co-defendant and was arrested with significant quantities of drugs and firearms. Although initially indicted on multiple charges, he accepted a plea bargain that led to the dismissal of the remaining counts.

A presentence report, which included an assessment of Harris' criminal history and offense level, was prepared without objection from him despite opportunities to do so. The government acknowledged Harris’ substantial assistance in other cases, leading to a six-level downward departure in sentencing, reducing his guideline range significantly. Despite the favorable outcome, Harris pursued relief under § 2255. The district court granted a certificate of appealability for the ineffective assistance claim but denied it for two other claims. The appellate court found jurisdiction over the entire § 2255 motion despite Harris only appealing the latter claims, ultimately focusing on the ineffective assistance issue.

Mr. Harris claims he was denied effective legal assistance because his attorney failed to challenge the inclusion of two Ohio misdemeanor convictions in his criminal history score calculation. The convictions were for driving with a suspended license and disorderly conduct. According to U.S.S.G. 4A1.2(c)(1), these offenses should only be counted if they resulted in a sentence of probation for at least one year or imprisonment for at least 30 days. Mr. Harris asserts that neither conviction met this criterion. However, he was sentenced to '2 years PNC' and '1 year PNC', which refers to a condition of no further convictions and is equivalent to unsupervised probation. Therefore, these sentences qualify as probation under U.S.S.G. 4A1.1(c). Consequently, an objection to the inclusion of these convictions would have been futile, and Mr. Harris cannot demonstrate ineffective assistance of counsel as per Strickland v. Washington.

Additionally, Mr. Harris argues that his attorney should have contested the drug quantities used to determine his base offense level. He claims these quantities were based on immunized statements from his plea agreement, as well as statements from a co-conspirator and a confidential informant. However, the presentence report indicates that the drug quantities considered were solely from evidence found in his home and corroborated transactions, which supports the report's correctness. Harris also contends that drug quantities related to other charges should have been excluded; yet, under U.S.S.G. 1B1.3, such quantities can be included if they are part of the same course of conduct as the count of conviction. The court found that all drugs attributed to him were connected to the relevant conduct, and Harris did not dispute this. The decision was affirmed.