United States v. Ernest Harris

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-1442

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UNITED STATES OF AMERICA

v.

ERNEST THOMAS HARRIS

a/k/a PICKLE

a/k/a MICHAEL YOUNG

a/k/a MICHAEL FORD,

Appellant

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Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 2:11-cr-00196-001)

District Judge: Honorable Nora Barry Fischer

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Argued October 29, 2013

Before: MCKEE, Chief Judge, FISHER and SLOVITER,

Circuit Judges

(Opinion Filed: May 9, 2014)

Jane M. Dattilo, Esq.(Argued)

Rebecca R. Haywood, Esq.

David J. Hickton, Esq.

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

Joseph M. Yablonski, Esq. (Argued)

Yablonski, Costello & Leckie, P.C.

505 Washington Trust Building

30 East Beau Street

Washington, PA 15301

Counsel for Appellant

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OPINION OF THE COURT

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McKEE, Chief Judge

Ernest Thomas Harris appeals the 120-month sentence

that the district court imposed on him following his nolo

contendere plea for possession of a firearm by a felon in

violation of 18 U.S.C. § 922(g)(1). Harris claims that his

sentence was substantively and procedurally flawed. The

primary contention that he raises, one of first impression for

this Court, is whether one who pleads nolo contendere to an

offense is thereby ineligible for a reduction in the offense

level for acceptance of responsibility pursuant to U.S.S.G. §

3E1.1. Although we hold that a nolo contendere plea does not

automatically preclude a district court from granting such a

reduction, we will nevertheless, affirm the sentence.

I.

On May 31, 2011, Harris consumed large amounts of

drugs and alcohol from about 4:00 p.m. to 9:00 p.m. in

celebration of his birthday. He continued his celebration by

meeting some friends at a bar in Pittsburgh, Pennsylvania. At

some point after arriving at the bar, Harris brandished a gun

several times as he walked around the bar, sometimes

swaying from side to side. His actions were recorded by the

bar’s video cameras. In response, two patrons inside the bar

called 911 and identified Harris as the man who was

brandishing the gun.

When Officer Raymond Perry arrived on the scene,

Harris was standing outside of the bar with the gun in his

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hand. With the help of other officers, Officer Perry arrested

Harris and seized the gun. Officer Perry testified that Harris

uttered nonsensical things to the officers as they arrested him.

Officer Perry concluded that Harris was highly intoxicated,

and the officers declined to interview him at that time.

On August 24, 2011, a federal grand jury returned a

two-count indictment against Harris charging him with

unlawful possession of ammunition (Count One), and

unlawful possession of a firearm by a convicted felon (Count

Two).

On December 20, 2011, the district court held a change

of plea hearing to determine whether Harris could plead nolo

contendere to Count Two. 1 During the hearing, Harris

testified that, on the night in question, he was so intoxicated

that he did not remember anything after he arrived at the bar.

Officer Perry testified that Harris uttered strange things to

him during the arrest and was too intoxicated to be

interviewed. The district court also watched the video

recording made by the bar’s camera that night, and Harris

admitted he was the man in the video with the gun.

At the end of this hearing, the government agreed that

Harris probably did not remember the events from that night

and suggested that the district court accept the nolo

contendere plea. The district court agreed with the

government that Harris was too intoxicated to remember the

details of that night, and concluded that a nolo contendere

plea was appropriate on Count Two.

The district court thereafter accepted the plea and

subsequently sentenced Harris to the statutory maximum of

120-months imprisonment on Count Two. His base offense

level for violating § 922(g)(1) was 24; he received a 4-level

increase for possessing a firearm in connection with another

felony; and he incurred a 2-level increase for possessing a

stolen firearm. The district court denied Harris’s requests for

a 3-level reduction for acceptance of responsibility under

1 Harris pleaded not guilty to Count One and was

subsequently acquitted after a three day trial.

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U.S.S.G. § 3E1.1 and a downward variance based on his

mental health history. With a base offense level of 30 and a

criminal history category of IV, his advisory sentencing

Guidelines range was 135 to 168 months. The district court

reduced this sentence to the statutory maximum of 120

months.

II.

Harris argues the district court erred in rejecting his

request for a U.S.S.G. § 3E1.1 reduction for acceptance of

responsibility. We review a district court’s determination of

whether the defendant is entitled to an acceptance of

responsibility under reduction for clear error. United States v.

Ceccarani, 98 F.3d 126, 129 (3d Cir. 1996).

Under U.S.S.G. § 3E1.1(a), a defendant who “clearly

demonstrates acceptance of responsibility for his offense” is

entitled to a 2-level reduction to his calculated offense level. 2

The defendant, however, must show by a preponderance of

the evidence that s/he is entitled to this reduction. United

States v. Boone, 279 F.3d 163, 193 (3d Cir. 2002). Moreover,

in assessing whether a defendant has adequately accepted

responsibility, the district court “has the obligation to assess

the totality of the situation.” United States v. Cohen, 171

F.3d 796, 806 (3d Cir. 1999) (internal citation and quotation

marks omitted) (emphasis added).

Harris claims he did everything he could to

demonstrate acceptance of responsibility. According to

Harris, he had to plead nolo contendere rather than guilty

2 In his brief, Harris mentions that, in addition to the 2-level

reduction under § 3E1.1(a), he expected a 1-level reduction

under § 3E1.1(b). To qualify for a § 3E1.1(b) reduction,

however, the defendant must first qualify for a 2-level

reduction under § 3E1.1(a). The government must also

submit a motion “stating that the defendant has assisted

authorities . . . by timely notifying [them] of his intention to

enter a plea of guilty thereby permitting the government to

avoid preparing for trial and . . . allocate their resources

efficiently.” Since we agree that Harris did not qualify for a §

3E1.1(a) reduction, and the government did not submit the

requisite motion, Harris is ineligible for this 1-level reduction.

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because he was so “high” from ingesting alcohol and

controlled substances that he simply could not remember the

events of the night in question. Nevertheless, he argues that

he told the truth and immediately accepted responsibility for

his actions, and should therefore have been afforded the

benefit of a reduced offense level. He argues that he should

not be forced to perjure himself by admitting to actions under

oath that he could not remember in order to receive the

benefit of U.S.S.G. § 3E1.1. Although we do not disagree,

Harris’s argument ignores the circumstances surrounding his

plea.

The district court found Harris’s statements that he

could not recall the evening in question credible, and we

therefore do not doubt that Harris simply could not recall the

circumstances leading to his arrest to the extent required to

admit his conduct under oath. We are not unsympathetic to

Harris’s claim that he should not be lured into perjury in order

to admit to conduct that he simply cannot remember.

Nevertheless, on this record, we are not prepared to say that

the district court committed clear error in concluding that

Harris was not sufficiently remorseful to receive the benefit

of U.S.S.G. § 3E1.1.

The district court was in a unique position to assess his

sincerity, and “we are especially deferential to [its]

assessment of whether the defendant accepted responsibility.”

United States v. Williams, 344 F.3d 365, 379 (3d Cir. 2003);

see also U.S.S.G. § 3E1.1 cmt. 5. Here, the district court was

able to carefully evaluate Harris’s demeanor prior to

imposing this sentence. During Harris’s change of plea

hearing, the district court observed Harris’s demeanor as the

court viewed the surveillance video from the bar. The district

court could also observe Harris as the video played in court.

Even though Harris did not remember his actions in the bar,

he saw what he did. Although we certainly do not expect him

to admit to something he did not remember just so that he

could “game the system” into giving him a reduction under

U.S.S.G. § 3E1.1, Harris’s claim of clear error ignores the

fact that the district court could draw certain conclusions from

Harris’s reaction to the surveillance video. The court

concluded that, even though he could not then remember his

actions in the bar, his demeanor when confronted with the

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video suggested an absence of remorse for what he saw.

Even if his conduct did not endanger anyone in the bar – a

rather dubious proposition that we will accept for purposes of

argument – he clearly placed the people in the bar in fear of

imminent harm.

We are simply not prepared to say that it was clearly

erroneous for the district court to conclude that Harris’s

reaction to that video was inconsistent with an expression of

remorse for the conduct depicted. Despite Harris’s

arguments to the contrary, this situation is simply not the

same as penalizing him for his inability to recall his conduct

that night, and we cannot agree that he received a greater

sentence because he refused to perjure himself and admit to

conduct he did not remember. The district court closely and

carefully assessed the totality of the situation, and there is no

clear error.

III.

Harris also argues that the district court erred by

applying U.S.S.G. §§ 2K2.1(b)(6)(B) and 2K2.1(b)(4)(A) to

his sentence. We “review factual findings relevant to the

[Sentencing] Guidelines for clear error.” United States v.

Grier, 475 F.3d 556, 570 (3d Cir. 2007). A district court’s

‘“finding is clearly erroneous when . . . the reviewing body on

the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” United States

v. Ali, 508 F.3d 136, 143 (3d Cir. 2007) (quoting Concrete

Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust

for S. Cal., 508 U.S. 602, 622 (1993)).

A.

Under U.S.S.G. § 2K2.1(b)(6)(B), a defendant incurs a

4-level enhancement if the district court finds that he “[u]sed

or possessed any firearm or ammunition in connection with

another felony offense.” In making this determination, the

district court applies a preponderance of the evidence

standard. United States v. West, 643 F.3d 102, 104-05 (3d

Cir. 2011).

Here, the district court found by a preponderance of

the evidence that Harris committed simple assault in violation

of 18 Pa. Cons. Stat. Ann. § 2701(a)(3) by placing patrons in

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the bar in fear of imminent bodily injury with his actions.

Harris argues that the evidence was insufficient to establish

that he committed simple assault. Specifically, Harris

contends that the video recordings demonstrated that he only

possessed and brandished the firearm. He claims that is not

sufficient to constitute simple assault under Pennsylvania law.

The district court noted that although the surveillance

recording did not have audio, the menacing nature of Harris’s

actions was established by observing the video. Moreover,

the district court listened to recordings of the 911 calls placed

that night from the bar. Those recordings included one caller

affirming that Harris was threatening people in the bar. The

district court found that this was sufficient to establish by a

preponderance of the evidence that Harris’s actions that night

placed patrons in the bar in fear of imminent bodily injury.

Thus, we are not left with a “definite and firm conviction that

a mistake has been committed.” Ali, 508 F.3d at 143.

B.

Under U.S.S.G. § 2K2.1(b)(4)(A), a defendant incurs a

2-level enhancement if the district court finds that the

defendant possessed a stolen firearm. In making this

determination, the district court again applies a

preponderance of the evidence standard. See Grier, 568 F.3d

at 567.

Harris claims that the government failed to show by a

preponderance of the evidence that the firearm in question

was stolen. He claims that the firearm owner, who passed

away before Harris’s sentencing hearing, would not have

been a credible witness had he been able to testify at Harris’s

sentencing. According to Harris, the firearm owner’s

purported lack of credibility establishes that the government

could not prove the firearm was stolen, and therefore the

district court clearly erred in so finding.

Despite the firearm owner’s possible credibility issues,

the district court determined that sufficient evidence was

present to demonstrate the firearm was stolen. The district

court carefully examined two reports from the Department of

Justice that indicated that the firearm was stolen. The district

court also pointed out that Harris had not presented any

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evidence suggesting he had a lawful right to the firearm. The

district court therefore concluded that the government had

satisfied its burden. We cannot conclude that the district court

clearly erred in applying this enhancement.

IV.

Nor did the district court commit procedural or

substantive error by denying Harris’s request for a downward

variance based on his mental-health. On review of a district

court’s sentencing decision, “[w]e must first ensure that the

district court committed no significant procedural error in

arriving at its decision.” United States v. Wise, 515 F.3d 207,

217 (3d Cir. 2008). This review is for abuse of discretion. Id.

If the district court has committed no substantial procedural

error, “we then review the substantive reasonableness of the

sentence under an abuse-of-discretion standard.” Id. at 218.

Procedural errors include “failing to calculate (or

improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence.” United

States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (quoting

Gall v. United States, 552 U.S. 38, 51 (2007)).

Here, although not explicitly alleged by Harris, the

only procedural error he could attempt to argue is that the

court did not properly consider all of the factors contained in

18 U.S.C. § 3553(a). Although we do not suggest the district

court did fail to adequately consider § 3553(a), Harris seems

to argue that the court failed to adequately consider the

“history and characteristics of the defendant” under §

3553(a)(1) by failing to sufficiently consider his mental

health history and background.

Harris asserted that his alcohol and drug problems

were a significant part of his mental health issues. The

district court correctly found that substance abuse problems,

without more, do not necessarily justify a downward variance

under the Guidelines. U.S.S.G. § 5H1.4. The district court

also considered, but rejected, a downward variance based on

U.S.S.G. § 5H1.3. The court concluded that Harris’s case

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was not sufficiently extraordinary to warrant a departure

based on this provision. See U.S.S.G. § 5H1.3. Accordingly,

the district court committed no procedural error.

Harris’s sentence was also substantively reasonable.

Substantive review of a district court’s sentence “requires us

not to focus on one or two factors, but on the totality of the

circumstances.” Tomko, 562 F.3d at 567. Due to the district

court’s unique position as the sentencing court, “[w]e may not

reverse [it] simply because we would have imposed a

different sentence.” Wise, 515 F.3d at 218. Indeed, we “will

affirm it unless no reasonable sentencing court would have

imposed the same sentence on that particular defendant for

the reasons the district court provided.” Tomko, 562 F.3d at

568. Here, in imposing the statutory maximum sentence on

Harris, the district court adequately considered all of the §

3553(a) factors. Accordingly, there is no reason to conclude

that the sentence was unreasonable. See id. (“[A]bsent any

significant procedural error, we must give ‘due deference to

the district court’s determination that the § 3553(a) factors, on

a whole,’ justify the sentence.” (citation omitted)).

For these reasons, we will affirm the district court’s

sentence.

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