Harris v. United States ( 2000 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0071P (6th Cir.)
File Name: 00a0071p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

TYRONE K. HARRIS,

Petitioner-Appellant,


No. 97-4309
v.

>
UNITED STATES OF AMERICA, 
Respondent-Appellee. 
1
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 96-01235—James L. Graham, District Judge.
Argued: February 4, 2000
Decided and Filed: February 25, 2000
Before: NELSON, COLE, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Melynda W. Cook, SCHAD, BUDA & COOK,
Cincinnati, Ohio, for Appellant. Gary L. Spartis,
ASSISTANT UNITED STATES ATTORNEY, Columbus,
Ohio, for Appellee. ON BRIEF: Melynda W. Cook,
SCHAD, BUDA & COOK, Cincinnati, Ohio, for Appellant.
Gary L. Spartis, ASSISTANT UNITED STATES
ATTORNEY, Columbus, Ohio, for Appellee.
1
2 Harris v. United States No. 97-4309
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OPINION
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DAVID A. NELSON, Circuit Judge. Tyrone Harris was
sentenced to imprisonment for 87 months after he pleaded
guilty to a charge of possessing more than 500 grams of
cocaine with intent to distribute it, a violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B)(ii). On the advice of counsel,
Mr. Harris voluntarily dismissed an appeal of his sentence.
He later had a change of heart (and a change of lawyers),
which led to the filing of a motion to vacate the sentence
pursuant to 28 U.S.C. § 2255.
The § 2255 motion rested on the proposition that Mr.
Harris was denied effective assistance of counsel as a result
of his first lawyer’s failure to object to the manner in which
a presentence investigation report calculated Harris’ criminal
history score and his base offense level under the United
States Sentencing Guidelines. (The key issue is whether Ohio
misdemeanor convictions should be assigned criminal history
points where the convictions resulted in “PNC” sentences of
one year or more.) The district court denied the motion, and
Mr. Harris appeals. We see no merit in the objections Harris
says his lawyer ought to have raised, and we shall affirm the
district court’s order.
I
With a co-defendant, James Bridges, Mr. Harris made
repeated sales of cocaine powder and cocaine base to a
government informant during the summer and fall of 1995.
Harris was arrested in October of that year. A search of his
house at the time of the arrest disclosed substantial quantities
of cocaine powder, cocaine base and marijuana, as well as
several firearms.
A federal indictment handed up against Harris and Bridges
in December of 1995 contained 12 counts naming Harris.
Pursuant to a plea agreement, Harris pleaded guilty to a single
No. 97-4309 Harris v. United States 3
count of possessing cocaine with intent to distribute it; the
remaining charges against him were dropped.
A probation officer prepared a presentence report
calculating Mr. Harris’ sentence range – a function of his
offense level and his criminal history score – under the
sentencing guidelines. Mr. Harris did not press an objection
to the calculations, although he was given ample opportunity
to do so.
In recognition of substantial assistance provided by Mr.
Harris to the government in other proceedings, the United
States moved for a six-level downward departure in Harris’
base offense level. The district court granted the motion,
thereby reducing the guideline sentence range to
imprisonment for 87-108 months. (Without the departure, the
range would have been 168-210 months.) The court imposed
a sentence at the bottom of the revised range.
Despite his receipt of a relatively favorable sentence, and
after he had voluntarily dismissed a direct appeal to this court,
Mr. Harris moved for relief under 28 U.S.C. § 2255. The
district court denied the motion, granted a certificate of
appealability as to Harris’ claim of ineffective assistance, and
denied a certificate of appealability as to two additional
claims. Harris filed a notice of appeal addressing the latter
denial only, but this court found the notice effective to confer
appellate jurisdiction over the denial of the § 2255 motion
itself. See Harris v. United States, 170 F.3d 607, 608 (6th
Cir. 1999). We later declined to issue an expanded certificate
of appealability, so the ineffective assistance claim is the only
one now before us.
II
Mr. Harris argues that he was denied effective assistance of
counsel insofar as his lawyer failed to object to the inclusion
of two Ohio misdemeanor convictions in the calculation of
the criminal history score. One of the convictions was for
driving with a suspended license and the other was for
disorderly conduct. Under U.S.S.G. § 4A1.2(c)(1), a
4 Harris v. United States No. 97-4309 No. 97-4309 Harris v. United States 5
conviction for either of those particular offenses should not be calculating Harris’ base offense level were those found in the
counted in calculating a criminal history score for a drug search of his house and those sold to the confidential
offender unless the conviction resulted in a sentence of informant in corroborated transactions. The report is
probation for at least one year or imprisonment for at least 30 substantively correct, if syntactically inelegant, when it states
days. Mr. Harris contends that neither of his convictions that “[t]he defendant is not being attributed with any amounts
resulted in such a sentence. that were referred to by the co-defendant, informant, or
defendant himself.” We have done the arithmetic, and it
The contention is wrong. Although Mr. Harris was not checks out.
sentenced to supervised probation, he was sentenced to “2
years PNC” on one conviction and “1 year PNC” on the other. Mr. Harris further suggests that the calculation should have
Ohio courts use “PNC” as shorthand for “provided no excluded drugs associated with charges other than the single
convictions” – a condition on which a sentence of count on which he was convicted. The governing principle,
imprisonment is suspended. See City of Columbus v. Davis, however, is that “in a drug distribution case, quantities and
No. 93APC08-1170, 1993 WL 531290, at *1 (Ohio App. Dec. types of drugs not specified in the count of conviction are to
23, 1993). As a form of conditional discharge, a PNC be included in determining the offense level if they were part
sentence is the “functional equivalent of unsupervised of the same course of conduct or part of a common scheme or
probation.” United States v. Gay, Nos. 98-4178, 98-4179, plan as the count of conviction.” U.S.S.G. § 1B1.3, comment.
1999 WL 1111517, at **6-7 (6th Cir. Nov. 24, 1999); cf. (backg’d); see also United States v. Partington, 21 F.3d 714,
United States v. Miller, 56 F.3d 719, 721-22 (6th Cir. 1995). 717 (6th Cir. 1994), and United States v. Miller, 910 F.2d
A sentence of one or more years “PNC” thus qualifies under 1321, 1327 (6th Cir. 1990), cert. denied, 498 U.S. 1094
§ 4A1.1(c) as a term of probation of at least one year. See (1991). It is clear to us that all of the drugs attributed to Mr.
Gay, 1999 WL 1111517, at **7. Harris for sentencing purposes were involved in the same
relevant course of conduct – and Harris has not argued to the
Because an objection to inclusion of Mr. Harris’ contrary.
misdemeanor convictions in the calculation of his criminal
history score would have been futile, Harris cannot show that AFFIRMED.
his attorney was constitutionally “ineffective” in failing to
make such an objection. See Strickland v. Washington, 466
U.S. 668, 687-96 (1984).
III
Mr. Harris also argues that his attorney should have
objected to the drug quantities used in establishing his base
offense level under the guidelines. Harris suggests that the
probation officer who prepared the presentence report
improperly included drug quantities that were based on
immunized statements Harris gave pursuant to his plea
agreement and on statements of a co-conspirator and a
confidential informant. It is plain on the face of the
presentence report, however, that the only drugs used in