United States v. Nicholas Harris
2012 U.S. App. LEXIS 25190
| 5th Cir. | 2012Background
- Harris pleaded guilty to attempted possession with intent to distribute cocaine; the PSR set a total offense level of 30 and a two-point decline for acceptance of responsibility, with criminal history Category III.
- The PSR included Harris’s arrest history—five arrests since 1999 with some dispositions as no prosecutions or dropped charges and some underlying conduct described by police reports.
- At sentencing Harris did not object to the PSR before sentencing; he argued his criminal history was overstated due to an old conviction.
- The district court described the old convictions as a “close call,” noted multiple uncounted assaults and unprosecuted arrests, and sentenced Harris to 132 months (within a 121–151 month range).
- Harris challenged the use of unadjudicated priors as part of the sentence and asserted procedural error; he also raised Sixth/Fifth Amendment concerns and a lack of jury-based proof for sentencing facts.
- The Fifth Circuit reviews sentencing for procedural and substantive reasonableness, with a presumption of reasonableness for within-Guidelines sentences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by considering Harris's bare arrest record | Harris argues the PSR’s bare arrests are unreliable and improper for sentencing. | The government contends the PSR included reliable factual recitations with indicia of reliability. | No procedural error; PSR contained reliable conduct-based facts supporting the arrests. |
| Whether the factual recitations underlying unadjudicated arrests had adequate evidentiary support | Harris did not rebut the PSR facts; objecting to reliability. | PSR facts had sufficient reliability and evidentiary basis. | District court could rely on cited PSR facts given adequate reliability. |
| Whether Harris is entitled to an additional 3E1.1(b) reduction for acceptance of responsibility | Government refused to file the motion; Harris seeks an extra reduction. | The government may decline to move for the reduction. | Foreclosed by United States v. Newson. |
| Whether Harris’s sentence violated Sixth or Fifth Amendment rights by not having sentencing facts proven by a jury | Sentencing facts were judicially found, not jury-tried. | Rhine forecloses this Sixth/Fifth Amendment challenge. | Foreclosed by United States v. Rhine. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (procedural error first, then substantive review; within-Guidelines presumptively reasonable)
- Rita v. United States, 551 U.S. 338 (U.S. 2007) (courts may consider the extent of the sentence within the Guidelines range)
- Johnson v. United States, 648 F.3d 273 (5th Cir. 2011) (arrest records require reliability before being used in sentencing)
- United States v. Williams, 620 F.3d 483 (5th Cir. 2010) (bare arrest records may be relied on only if supported by reliable facts)
- United States v. Trujillo, 502 F.3d 353 (5th Cir. 2007) (PSR facts may be adopted if supported by adequate evidentiary basis)
- United States v. Nava, 624 F.3d 226 (5th Cir. 2010) (reliability required for PSR as evidence)
- United States v. Rhine, 583 F.3d 878 (5th Cir. 2009) (forecloses Sixth Amendment sentencing-rights challenge)
- United States v. Newson, 515 F.3d 374 (5th Cir. 2008) (government may decline to move for acceptance of responsibility reduction)
- United States v. Solis, 299 F.3d 420 (5th Cir. 2002) (informational basis for sentencing evidence must be reliable)