United States v. Justin Harper
2014 U.S. App. LEXIS 17428
| 7th Cir. | 2014Background
- Police executed a parole-warrant arrest at the rear unit of a two-house property described as a "trap house," finding Harper in the rear bedroom with a loaded 9mm under the nightstand and large quantities of suspected drugs in the bedroom and elsewhere in the house.
- Forensic and investigative evidence included Harper’s fingerprints on a magazine, 148.6 g heroin, 105.4 g cocaine base, additional ammunition and a Glock .40, drug packaging, and a digital scale.
- Harper pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)).
- The PSR applied U.S.S.G. § 2K2.1 with the § 2K2.1(c)(1)(A) cross-reference to U.S.S.G. § 2X1.1, treating the firearm as possessed in connection with drug distribution; this produced an increased offense level and a 100-month sentence.
- At sentencing the district court relied on agents’ observations and hearsay testimony (via Special Agent Kirkpatrick recounting Travis Garner’s statements that Harper sold drugs the prior night and a firearm was present); the court found the hearsay sufficiently corroborated and reliable.
Issues
| Issue | Harper's Argument | Government/District Court Argument | Held |
|---|---|---|---|
| Whether § 2K2.1 cross-reference to § 2X1.1 was properly applied | No reliable evidence connecting firearm possession to drug activity; court relied only on "guns and drugs are related" inference | Evidence showed firearm in close proximity to drugs and testimony corroborated by search, supporting possession in connection with drug distribution | Affirmed: cross-reference properly applied based on proximity and reliable corroborated hearsay |
| Reliability/admissibility of hearsay at sentencing | Kirkpatrick’s recounting of Garner’s out-of-court statements was unreliable and stale | Sentencing courts may consider hearsay if reliable; corroboration by agents’ observations supports reliability | Affirmed: district court did not clearly err in crediting the hearsay as reliable |
| Whether court made required findings about drug quantity | PSR and district court failed to explicitly find drug quantities attributable to Harper | PSR adopted and attributed 2 oz cocaine base and 3 oz heroin based on Garner’s reliable statement and agents’ corroboration | Affirmed: district court adopted PSR findings and quantity attribution was supported |
| Constitutional and textual challenge to using § 2X1.1 via cross-reference | § 2X1.1 applies only to attempts/ conspiracies; § 2K2.1(c) enhancement violates Fifth and Sixth Amendments by raising guidelines based on judge-found facts | § 2K2.1’s text references commission or attempted commission; cross-reference valid; enhancement affects guideline range not statutory maximum; courts may rely on judge-found facts for guideline calculations | Affirmed: cross-reference is textually proper; no successful facial Fifth or Sixth Amendment challenge |
Key Cases Cited
- United States v. Howard, 729 F.3d 655 (7th Cir.) (guideline cross-reference under § 2K2.1 directs use of higher offense level when firearm used in connection with another offense)
- United States v. Anobah, 734 F.3d 733 (7th Cir.) (clear-error review of sentencing factual findings)
- United States v. White, 519 F.3d 342 (7th Cir.) (sentencing court best positioned to assess witness credibility)
- United States v. Earls, 704 F.3d 466 (7th Cir.) (interpretation of Application Note scope when § 2X1.1 is reached by cross-reference)
- United States v. Johnson, 489 F.3d 794 (7th Cir.) (sentencing courts may rely on hearsay if reliable)
- United States v. Isom, 635 F.3d 904 (7th Cir.) (double hearsay admissible at sentencing where sufficiently reliable)
- United States v. Meece, 580 F.3d 616 (7th Cir.) (firearm found in close proximity to drugs supports inference of connection to drug trafficking)
- United States v. Markovitch, 442 F.3d 1029 (7th Cir.) (proximity of firearm to drugs as powerful evidence of connection)
- United States v. Alcantar, 733 F.3d 143 (5th Cir.) (similar recognition that firearms near drugs support a nexus to trafficking)
- United States v. Jones, 313 F.3d 1019 (7th Cir.) (limitations applying relevant-conduct principles to § 2K2.1 enhancements)
- United States v. Kulick, 629 F.3d 165 (3d Cir.) (same—courts limit § 2K2.1 reach by requiring relevant conduct nexus)
- McMillan v. Pennsylvania, 477 U.S. 79 (1986) (discussion of concerns when sentencing factors outweigh charged offense conduct)