Argued: March 22, 2018
from the United States District Court for the District of
South Carolina, at Charleston. C. Weston Houck, Senior
District Judge. (2:10-cr-01198-CWH-3)
Eskin Major HaLevi, MEDIATION & LEGAL SERVICES, LLC,
Charleston, South Carolina, for Appellant.
Nicholas Bianchi, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, South Carolina, for Appellee.
Drake, United States Attorney, Nick Bianchi, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, South Carolina, for Appellee.
GREGORY, Chief Judge, KEENAN, and FLOYD, Circuit Judges.
GREGORY, CHIEF JUDGE
Harris appeals his twenty-year sentence for conspiracy to
manufacture and distribute marijuana. He primarily argues
that the district court erred by failing to consider
non-frivolous mitigating factors, declining to apply a
two-level reduction for acceptance of responsibility, and
treating second-degree kidnapping under North Carolina law as
a crime of violence under the Federal Sentencing Guidelines.
Harris also argues that he should have been allowed to file
his sentencing memorandum under seal in district court. Due
to binding circuit precedent, we must affirm Harris's
sentence despite sharing the district court's misgivings
about imposing a very lengthy sentence for a marijuana
offense. We reverse and remand for the limited purpose of
sealing Harris's sentencing memorandum and requiring
Harris to file a redacted version to preserve the privacy of
Christopher Harris took part in a conspiracy to grow and
distribute marijuana from 2010 to 2011. Officers seized 499
marijuana plants from a co-conspirator's motel before
searching Harris's residence, where they found a disputed
number of marijuana plants.
Government charged Harris with a number of conspiracy and
drug offenses. Harris agreed to plead guilty to one count of
knowingly or intentionally manufacturing marijuana under 21
U.S.C. § 841. J.A. 83. At the plea hearing, the
Government claimed that agents seized 108 marijuana plants
from Harris, but Harris maintained that he had only 89. J.A.
98-100. Harris otherwise agreed with the facts presented by
the Government and entered his guilty plea. Despite the
numerical dispute, the district court accepted the plea,
believing drug quantity to be purely a sentencing issue that
could be resolved later. J.A. 99-100.
his sentencing hearing could take place, Harris fled the
country. On December 29, 2011, Harris cut his ankle monitor
and escaped to Thailand, where he married a Thai national.
Harris was arrested in 2012 and sent back to the United
States for sentencing. Meanwhile, his wife gave birth to
their child in Thailand.
district court sentenced Harris on January 30, 2013. Because
of his prior convictions, Harris was determined to be a
career offender, which contributed to a Guidelines range of
360 months to life. The district court declined the requested
acceptance of responsibility reduction because of
Harris's escape to Thailand. However, the district court
recognized that Harris's criminal history primarily
consisted of marijuana-related offenses. According to the
district court, the nationwide trend towards marijuana
legalization had reduced the relative severity of marijuana
offenses and therefore justified a significantly lower
sentence. Ultimately, the district court decided that a
downward variance was appropriate and imposed a sentence of
240 months, ten years lower than the bottom of the Guidelines
argued for an even lower sentence because his co-defendants
had received substantially lower sentences. Among the
co-conspirators, the second longest sentence was five years.
However, the district court noted that Harris's
co-defendants were not career offenders, which accounted for
two years after Harris began serving his sentence, his
conviction was vacated under Apprendi v. New Jersey,
530 U.S. 466 (2000). Contrary to the district court's
understanding at the plea hearing, the dispute over the
number of plants seized from Harris was critical to the
validity of the guilty plea. Distribution of at least 100
marijuana plants had the effect of increasing Harris's
maximum sentence under 21 U.S.C. § 841(b)(1)(B). As a
result, that fact had to be either found by a jury beyond a
reasonable doubt or pleaded to by the defendant. See
id. at 490 ("Other than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt."). This
error was corrected on a 28 U.S.C. § 2255 motion, and
Harris's conviction was vacated in 2015.
his conviction vacated, Harris negotiated a new plea. Harris
agreed to plead guilty to conspiracy to distribute 100 or
more marijuana plants, rather than actual manufacturing or
distribution. This obviated the dispute over the plants
seized from Harris because, under conspiracy liability,
Harris was responsible for the well-over 100 plants that were
seized from his co-conspirator(s). The Government continued
to pursue the career offender enhancement, arguing that
Harris's prior conviction for kidnapping in North
Carolina was a crime of violence under § 4B1.2 of the
Federal Sentencing Guidelines. However, unlike before, the
Government declined to pursue an enhancement for a prior drug
offense under 21 U.S.C. § 851. J.A. 239.
28, 2016, the district court conducted Harris's second
sentencing hearing, which is the subject of this appeal. The
district court agreed with the Government that Harris should
again be sentenced as a career offender. Nevertheless,
because the Government did not pursue the drug enhancement
under 21 U.S.C. § 851, Harris's Guidelines range
dropped to 262 to 327 months, down from the 360 months to
life that the Guidelines previously recommended. Harris
presented mitigation arguments, arguing that he had been
successfully rehabilitated while in prison and that marijuana
offenses are generally less severe than other offenses in
light of marijuana legalization as a national trend.
the drop in the Guidelines range, the district court again
sentenced Harris to 240 months, with credit for the time that
Harris had already served. The district court indicated that
it was imposing the same sentence, for the reasons that it
gave at the first sentencing hearing, because Harris was
largely in the same position. The district court discussed
the rehabilitation evidence but discredited it in light of
Harris's criminal history. The district court also
refused to grant a two-level reduction for acceptance of
responsibility, again because of Harris's ...