United States v. Russell Harrison ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 19-3071 September Term, 2021
FILED ON: JULY 22, 2022
UNITED STATES OF AMERICA,
APPELLEE
v.
RUSSELL HARRISON, ALSO KNOWN AS RUSS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cr-00059-8)
Before: WILKINS, KATSAS, and JACKSON, * Circuit Judges.
JUDGMENT
This appeal was considered on the record from the United States District Court for the
District of Columbia and on the briefs and oral argument of the parties. The Court has afforded
the issues full consideration and has determined that they do not warrant a published opinion. See
Fed. R. App. P. 36; D.C. Cir. R. 36(d). It is hereby
ORDERED that the judgment of the District Court be AFFIRMED.
After officers found drug paraphernalia and six firearms in his Maryland home, a federal
grand jury in the District of Columbia charged Russell Harrison with one count of conspiracy to
distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of using a firearm
during and in relation to the conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A). While in jail
pending resolution of the charges, Harrison stabbed a fellow inmate several times. He was then
charged in D.C. Superior Court with assault and attempted possession of a prohibited weapon in
violation of D.C. law. Harrison and the government reached a plea agreement on the federal
charges: Harrison pleaded guilty to the section 924(c) charge, and the government dropped the
*
Circuit Judge, now Justice, Jackson was a member of the panel when this case was argued but did not
participate in the judgment.
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conspiracy charge. Harrison’s recommended sentence for the section 924(c) offense under the
Sentencing Guidelines was five years, the statutory minimum. U.S.S.G. § 2K2.4(b).
The district court held two sentencing hearings. At the first, it decided not to sentence
Harrison until his D.C. charges had been resolved, in order to make the federal sentence run
consecutively with any D.C. sentence. Nevertheless, the parties presented their respective
sentencing recommendations. After they did so, the court determined that an upward variance
would be appropriate given Harrison’s extensive criminal history, the number of weapons
involved, and his stabbing of another inmate. After Harrison was sentenced to 90 days’
imprisonment for his D.C. offenses, the district court held a second hearing and imposed a sentence
of nine years and two months, a 50-month upward variance. At that hearing, the court offered no
further explanation for the variance.
On appeal, Harrison claims that his plea was invalid because the district court wrongly
informed him that conspiracy to distribute cocaine is a predicate “drug trafficking crime” under
section 924(c). We disagree. The term “drug trafficking crime” includes “any felony punishable
under the Controlled Substances Act.” 18 U.S.C. § 924(c)(2). That Act makes distributing cocaine
a felony. 21 U.S.C. § 841(a)(1). It likewise makes it a felony to conspire to commit an offense
that the Act elsewhere defines as a felony. Id. § 846. Thus, the court properly informed Harrison
about the section 924(c) charge.
Harrison further claims that the district court partly based its variance on out-of-circuit
precedent contrary to the law of this circuit. The Armed Career Criminal Act imposes a 15-year
mandatory minimum for possessing a firearm as a felon with three qualifying prior convictions.
18 U.S.C. § 924(e). At sentencing, the government argued that although this minimum did not
apply to Harrison under D.C. Circuit precedent, it could have brought charges in Maryland, where
the minimum would apply under Fourth Circuit precedent. In explaining its sentence, the district
court neither credited nor rejected this argument. Harrison claims we must therefore remand for
clarification. But we presume “that the district court knew and applied the law correctly”; we do
not remand where the court was merely “silent as to its view” on an erroneous argument presented
by the government. United States v. Mouling, 557 F.3d 658, 668 (D.C. Cir. 2009).
Harrison also argues that the district court failed to explain its upward variance. Because
he did not raise this objection below, we review it only for plain error. Fed. R. Crim. P. 52(b). At
the first sentencing hearing, the court gave an adequate explanation by identifying several
considerations, most notably Harrison’s post-arrest attack against another inmate, that the
applicable guidelines did not take into account. See United States v. Akhigbe, 642 F.3d 1078, 1086
(D.C. Cir. 2011). The court’s only potential error was the timing of its explanation. A court must
explain its sentence “at the time of sentencing.” 18 U.S.C. § 3553(c). “Sentencing” often refers
only to “the oral announcement of the sentence,” Fed. R. Crim. P. 35(c), and the court did not
explain its sentence at that time. But “sentencing” can also refer more broadly to sentencing
proceedings generally. For instance, it is common to say that a party made an argument “at
sentencing,” which cannot mean at the moment the court orally announced the sentence. See, e.g.,
Rita v. United States, 551 U.S. 338, 359 (2007) (“Rita argued at sentencing that his circumstances
are special.”). On this broader understanding of the term, the district court arguably explained the
variance “at the time of sentencing”—i.e., at a hearing conducted after the relevant charges had
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been adjudicated and the parties had been afforded a full opportunity to argue any relevant
sentencing issues. We do not hold that the broader interpretation is the correct one. Instead, we
hold only that, because that question is at least reasonably debatable, any timing error here was
not plain. See Puckett v. United States, 556 U.S. 129, 135 (2009) (to constitute plain error, the
“legal error must be clear or obvious, rather than subject to reasonable dispute”). In addition, the
court’s explanation establishes the substantive reasonableness of Harrison’s sentence, given the
differences between his case and, say, that of a drug offender with a single gun, no prior criminal
history, and no acts of violence.
Finally, Harrison argues that his Superior Court counsel was ineffective by failing to delay
the Superior Court sentencing until after the district court had sentenced him on the section 924(c)
charge. Had counsel done this, he claims, the district court could not have imposed a consecutive
sentence. But the Sixth Amendment right to counsel is “specific to the offense” charged. Texas
v. Cobb, 532 U.S. 162, 172 n.2 (2001). Harrison’s Superior Court counsel, who was not the same
attorney as his district court counsel, had no constitutional duty to assist him in his district court
proceedings. In any event, counsel’s failure to delay did not prejudice Harrison. The district court
made clear that it would wait until after the Superior Court proceedings had concluded to sentence
Harrison, so that it could be sure to impose a consecutive sentence. And even if counsel could
somehow have forced the district court to issue the first sentence, the district court still could have
directed that its sentence run consecutively to the Superior Court sentence even though the latter
had not yet been issued. Setser v. United States, 566 U.S. 231, 234–37 (2012).
For these reasons, we affirm the judgment of the district court. Pursuant to D.C. Circuit
Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the
mandate until seven days after resolution of any timely petition for rehearing or petition for
rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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