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United States v. Harry

United States District Court, N.D. Iowa, Eastern Division

June 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
SCOTT MICHAEL HARRY, Defendant.

          SENTENCING OPINION AND STATEMENT OF REASONS PURSUANT TO 18 U.S.C. § 3553(c) EXPLAINING A POLICY DISAGREEMENT WITH THE METHAMPHETAMINE GUIDELINES

          Leonard T. Strand, Chief Judge

         This case came before me for sentencing on May 31, 2018. At the conclusion of the hearing, I sentenced defendant Scott Michael Harry to 280 months imprisonment and 10 years of supervised release. While I explained the reasons for this sentence on the record, I have prepared this opinion to memorialize and expand upon my comments.

         I. RELEVANT PROCEDURAL HISTORY

         A. Indictment and Trial

         On June 7, 2017, the Grand Jury returned an indictment (Doc. No. 2) charging Harry with one count of possession with intent to distribute methamphetamine after having been previously convicted of a felony drug offense. Specifically, the indictment alleged that on or about February 10, 2017, Harry “did knowingly possess with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, which contained 50 grams or more of pure (actual) methamphetamine, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(A), and 851.” Doc. No. 2 at 1. Harry filed a motion to suppress evidence and a supplemental motion to suppress evidence, both of which were ultimately denied. The case then proceeded to a jury trial, which began on December 19, 2017.

         The evidence at trial indicated that on February 10, 2017, Harry and another individual were in the process of transporting 666.3 grams of methamphetamine from Des Moines, Iowa, to Dubuque, Iowa, when their vehicle was stopped. The methamphetamine, which was later determined to be 97.1% pure, was located after a drug detection canine alerted on the vehicle. In an interview with law enforcement, Harry admitted that he knew the methamphetamine was in the truck and provided information about the source and the intended recipient. In addition, three cooperating witnesses testified to Harry's involvement with methamphetamine distribution prior to February 10, 2017. Harry testified on his own behalf and, among other things, denied knowing that any methamphetamine was in the vehicle when it was stopped on February 10, 2017.

         On December 20, 2017, the jury returned a unanimous verdict (Doc. No. 82) of guilty as to the charged offense. In addition, the jury made unanimous findings that Harry was responsible for both (a) 500 grams or more of methamphetamine mixture and (b) 50 grams or more of actual (pure) methamphetamine. Doc. No. 82 at 1.

         B. The Presentence Report and Guidelines-Related Objections

         On May 2, 2018, United States Probation (Probation) filed the amended and final presentence report (PSR) for this case. Doc. No. 95. In the offense conduct section of the PSR, Probation held Harry responsible for 666.3 grams of ice methamphetamine[1]based on the drugs located in the vehicle on February 10, 2017. PSR ¶ 4. Probation also found Harry to be responsible for 1, 134 grams of additional ice methamphetamine based on the trial testimony and proffer statements provided by the cooperating witnesses. PSR ¶¶ 7, 11. Thus, Probation concluded that Harry should be held accountable for involvement with a total of 1, 800.3 grams (or 1.8 kilograms) of ice methamphetamine. PSR ¶ 21. Pursuant to USSG § 2D1.1(c)(2), this quantity of ice methamphetamine equates to a base offense level of 36, as it is at least 1.5 kilograms but less than 4.5 kilograms. Id. Harry objected to the PSR's drug quantity calculations and took the position that he should be held accountable only for the 666.3 grams of methamphetamine located in the vehicle on February 10, 2017.

         After determining a base offense level of 36, the PSR recommended two increases to the offense level: (1) a two-level increase pursuant to USSG § 2D1.1(b)(1) because the offense allegedly involved the possession of a dangerous weapon and (2) a two-level increase pursuant to USSG § 3C1.1 based on Harry's alleged obstruction of justice. PSR ¶¶ 22, 25. Harry objected to both proposed increases. In its sentencing brief and during the sentencing hearing, the Government indicated that it did not intend to seek, or prove, the “dangerous weapon” enhancement. However, the Government did advocate in favor of the obstruction of justice increase, relying largely on Harry's trial testimony.

         With regard to Harry's criminal history, the PSR assessed a total of 17 criminal history points, putting him squarely in Criminal History Category VI (which applies to 13 or more criminal history points). PSR ¶ 66. Harry objected to a three-point assessment concerning the conviction described in paragraph 45 of the PSR but acknowledged that even if this objection was sustained, he would remain as a Criminal History Category VI, with 14 criminal history points.

         C. My Guideline Findings

         Neither party offered evidence during the sentencing hearing, relying instead on the trial record and the PSR. After hearing arguments, I made the following findings:

a. I overruled Harry's objections concerning the drug quantities assessed in the PSR and found that the PSR correctly held him responsible for 1, 800.3 grams of ice methamphetamine, resulting in a base offense level of 36 pursuant to USSG § 2D1.1(c)(2).
b. I sustained Harry's (unresisted) objection to paragraph 22 of the PSR, thus declining to impose a two-level increase pursuant to USSG § 2D1.1(b)(1).
c. I overruled Harry's objection to paragraph 25 of the PSR and imposed a two-level increase pursuant to USSG § 3C1.1 based on my finding that Harry provided false testimony during his trial.
d. I sustained Harry's objection to the assessment of three criminal history points based on the conviction described in paragraph 45 and found ...

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