Petition for Writ of Certiorari — Sean Jason Harstine, Petitioner v. United States

No.

INTHE. .

SUPREME COURT OF THE UNITED STATES

October Term, 2020

RRR REA KERERERRERRRREEERRRERREEER ER ERE ER REREREREREERERE ER RREER

SEAN JASON HARSTINE, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent

RAK AR AREER RRE ER REE ERE REAR RREREB SERRE SERRE REE EE ER

MOTION TO PROCEED IN FORMA PAUPERIS

HEAR KAKA RR KEA REE E RIK RERE RRR ERE EEEER ERR BREE ERE EER RERERRER EE

The Petitioner, Sean Jason Harstine, by his undersigned counsel, requests

leave to file a Petition for Writ of Certiorari without prepayment of costs and to

proceed in forma pauperis pursuant to Rule 39 of the Supreme Court Rules.

Counsel was appointed in the lower court pursuant to 18 U.S.C. § 3006 and Rule 44,

Fed. R. CR. P.

This the 5th day of October, 2020.

Respectfully submitted,

ety Li fbha, th

RUDOLPH A. ASHTON, III

Panel Attorney,

Eastern District of North Carolina

N.C. State Bar No. 0125

Post Office Drawer 1389

New Bern, North Carolina 28563-13889

Telephone: (252) 633-3800

Email: RAshton@dunnpittman.com

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2020

FEI HIRO ERO RRA RR RRR IRI RRR RE ER ERE HER ERR IR ER ER

SEAN JASON HARSTINE, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent

HIRAM RIKI R RRR R ER ER ERR RENEE ERR REE K RE RELI R BREE,

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ARIA ER KIRA IRI RRR REAR REI RE RETR E IER R EERIE REE IER

RUDOLPH A. ASHTON, UI

Panel Attorney

Eastern District of North Carolina

North Carolina State Bar No. 0125

P.O. Drawer 1389

New Bern, North Carolina 28563-1389

Telephone: (252) 633-3800

Facsimile: (252) 633-6669

Email: RAshton@dunnpittman.com

QUESTION PRESENTED

WHETHER IT WAS ERROR TO COUNT CRIMINAL HISTORY POINTS

FOR FOUR 2004 BREAKING AND ENTERING (B&E) CONVITIONS

WHEN THE DEFENDANT WAS ONLY 17 YEARS OLD AT THE TIME OF

THE OFFENSES.

ii

TABLE OF CONTENTS

QUESTION(S) PRESENTED ....csccsscsssssssoseesorssesseessssssneeconssussessensseseessssnnssseesennnecsssenrs ii

TABLE OF CONTENTS ....ccsscsssssscssiecssssescccsnsecessneecessnsecsssetscsaneesssneessssseseansscesneansesnns iti

INDEX TO APPENDIX...:..scsssessosssssssssseecssnssseeetnnnseersnsssnetecansereeensaneenasanerannaateren iv

TABLE OF CASES AND STATUTES ....cccccsscssssssccssesscesecceneessesssseessnneessnnseanssssnnnseuneetey Vv

OPINION BELOW occecscssssscsssssessssecssssssssosssesoesseceesnnsesessnscessivessssnsessoseseesssseseeanseceeeantetens 1

JURISDICTION .cccccssssssssscssccsssssesssueecssssscsessnrecesusecsraneecerssssssnessssueesssuesersansecesnnmeseuness 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..........00 heed

STATEMENT OF THE CASE .occccsscccssecsssecssecesesesncsesrernvessusssecssssesssersaseenessnnseenseneeaneess 2

PROCEDURAL HISTORY ..sssessssssssssssecsessseescossescessvessssnneessssersssssseansseseesanacsenees

STATEMENT OF FACTS woscsssccsscssessccssssecsssseecssseseessenscsssseecesssecssssesceesneeseraneesees 3

REASONS FOR GRANTING THE PETITION ....csssecssssssssssesssssssseesssseeesnneseeenseesnsee 4

I. IT WAS ERROR TO COUNT CRIMINAL HISTORY POINTS

FOR THE FOUR 2004 BREAKING AND ENTERING (B&E)

CONVITIONS WHEN THE DEFENDANT WAS ONLY 17

YEARS OLD AT THE TIME OF THE OFFENSES, . 0. eeeeseseeeeseeees 4

CONCLUSION oiecccccccscecesctsescecceecessersssssscsseessesaeseesessensseneseneesessenesesneresnesenenessenseeceeneey 9

CERTIFICATE OF SERVICE u..cccccscesessssteesreeteetetees sedateacecesssecosessseseseeseaseseneeenees 10

ii

APPENDIX A -

APPENDIX B -

APPENDIX C -

APPENDIX D -

APPENDIX E -

APPENDIX F -

APPENDIX G -

APPENDIX H -

APPENDIX I-

APPENDIX J-

APPENDIX K -

INDEX TO APPENDIX

Opinion of the Fourth Circuit Court of Appeals (filed July 8,

2020)

Judgment

Mandate

Judgment, EDNC (5:17-CR-00846-2-D)

Guideline § 4A1.1

Guideline § 4A1.2

Portion of Presentence Report (PSR) showing relevant prior

convictions

N.C.G.S. § 7B-101

N.C.G.S. § 7B-1501

N.C.G.S. § 7B-2200 to 2204

Fourteenth Amendment, U.S. Constitution

iv

TABLE OF CASES AND STATUTES

CASES

United States v. Allen, 446 F.3d 522, (Ath Cir. 2006) ..ccccccssccccccsesetessesessseeesncenterenereees 6

STATUTES

Guideline § 4A1L ..ossssssssssssesssescesssssnnensesssececseesee seceeessceseseecesenecunsnensnsnansanensseeseceesnnes 5

Guideline § 4A1.2 c.ccccsesescesssssrerssseersesescsssessessessnesesenensecnensssecesssseesesssenenensererareteeeents 5

N.C.GLS. § TB-LOL ccecccsesessecesececeeresssssessesesnesssesseseeneseesensnecerecneaserseertassesssnssensaesneaaennenets 6

N.C.GS. § TB-LBOL ee eeecececectecesesescssssnsnsessenseseeneneaeenansneateaceneeensiessessesssanans eseantenesesaniss 6

N.C.GAS. § TB-2200. ccs tesserecesstsensenecesereeseraeseeenensesasneeaesaeeeeneenenseeneseanseneseeeeescnten 7

N.C.G.S. § 7B°2200.5 .eccccccsssssssssssssssssseeceeseeessssenssssssonsseseeeessecsssussunssseecceceeceeceecien wed

Fourteenth Amendment, U.S. Comstitution.....secceresereteeerniesieesreansneriesrssess 8

PETITION FOR WRIT OF CERTIORARI

Petitioner Sean Jason Harstine respectfully prays this Court that a writ of

certiorari issue to review the opinion of the United States Court of Appeals for the

Fourth Circuit, issued on July 8, 2020, affirming his judgment and sentence.

OPINION BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit for

which review is sought is United States v. Sean Jason Harstine, No. 19-4384 (4th

Cir., July 8, 2020). The opinion is unpublished. The opinion of the United States

Court of Appeals for the Fourth Circuit is reproduced in the Appendix to this

petition as Appendix A. The judgment is reproduced as Appendix B. The mandate

is reproduced as Appendix C.

JURISDICTION

The opinion and judgment of the United States Court of Appeals for the

Fourth Circuit was issued on July 8, 2020. The jurisdiction of this court is invoked

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

On August 7, 2018, the Petitioner, Shawn Jason Harstine, pled guilty to drug

and firearm offenses in the Eastern district of North Carolina. He received three (3)

criminal history points for offenses committed when he was only 17 years old.

Counsel objected claiming the convictions were outside the five-year period for

scoring purposes, The district court concluded that although Harstine would have

been a juvenile in other states, he was not a juvenile in North Carolina. Therefore

the criminal history points were assigned. An interpretation of the guidelines is at

issue here. Guideline §4A1.1 is reproduced as Appendix E, and guideline § 4A1.2 is

reproduced as Appendix F. It is also contended that the interpretation of the

guidelines herein denied the Petitioner of equal protection under the law as

required by the Fourteenth Amendment of the United State Constitution.

(Appendix K).

STATEMENT OF THE CASE

Procedural History

On November 16, 2017 Sean Jason Harstine and three other individuals were

charged in a 12 count indictment with drug and firearm offenses. Mr. Harstine was

‘charged in Counts 1, 8, 10 and 11 with conspiracy and drug offenses involving

heroin and methamphetamine pursuant to 21 U.S.C. § 841 and § 846, and in Count

12 with possession of a firearm in furtherance of a drug trafficking crime and aiding

and abetting pursuant to 18 U.S.C. § 924()((A)@. On August 7, 2018, Mr.

Harstine pled guilty to each of the above counts without a plea agreement before

the Honorable James C. Dever, II, Chief District Court Judge. The plea was

accepted, and he was adjudged guilty of the charges contained in Counts 1, 8, 10,

11, and 12. |

The case came on for sentencing before Judge Dever at the May 15, 2019

term of court. Several objections were overruled. Judge Dever determined that the

total offense level was 33, the criminal history category V, and the advisory

guideline range for Counts 1, 8, 10 and 11 was 210 to 262 months, and that the

Count 12 firearm charge carried a five year consecutive sentence. The Defendant

received a sentence of 210 months on Counts 1, 8, 19 and 11, to be served

concurrently and a consecutive 60 month sentence on Count 12, for a total sentence

of 270 months. He received a five year term of supervised release. (Appendix D).

On May 20, 2019 Mr. Harstine’s pro se notice of appeal was filed. In an

opinion entered by the Fourth Circuit Court of Appeals on July 8, 2020, his

judgment was affirmed by unpublished per curiam opinion. (Appendix A).

Statement Of Facts

In September, 2016 an investigation was initiated by the Wilson County

Sheriffs Department into alleged drug trafficking activities involving Sean

Harstine and the three co-defendants. Several confidential informants were used to

conduct controlled purchases of crystal methamphetamine (crystal meth) and

heroin.

On December 5, 2016 officers conducted a traffic stop on co-defendant Pate’s

vehicle. Harstine was in the driver’s seat and Pate was the passenger. A canine

alerted and drugs were found in the vehicle, which was towed. The following day ,

the tow truck service notified law enforcement that a loaded firearm was found in

the vehicle. Pate and Harstine were charged in Count 12 with possessing a firearm

in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c).

The Presentence Report assigned 3 criminal history points for several

breaking and entering convictions occurring in 2004 when Sean Harstine was age

17. (Appendix G). Counsel objected, claiming that at 17 years of age in every other

state in the country he would have been in juvenile court. Counsel further argued

that the import of this was that under the guidelines there would only be a five-year

look-back period. The district court determined that since Harstine was not a

juvenile in North Carolina, the guidelines assigned criminal history points to all

sentences imposed within fifteen years of the instant offense. The objection was

therefore overruled.

Further facts will be developed during the argument portion of this petition.

REASONS FOR GRANTING THE PETITION

I. IT WAS ERROR TO COUNT CRIMINAL HISTORY POINTS FOR THE

FOUR 2004 BREAKING AND ENTERING (B&E) CONVITIONS WHEN

THE DEFENDANT WAS ONLY 17 YEARS OLD AT THE TIME OF THE

OFFENSE.

On September 30, 2004 Sean Harstine pled guilty to several breaking and

entering cases in Wilson County Superior Court. He received consecutive sentences

resulting in a total sentence of more than one year and one month. (Appendix G).

He received three (3) criminal history points. Counsel objected claiming that the

convictions were outside the five-year period for scoring purposes because Harstine

was only 17 years old when the offenses occurred. Counsel argued that in every

other state in the country, Harstine would have been in juvenile court, and there

would be a five-year look-back period as opposed to fifteen years. The District Court

held that under the letter of the guidelines it was properly scored. Had petitioner

prevailed in this argument, his criminal history points would have been 7, not 10,

his criminal history category would have been IV, not V, and his guideline range

would have been 188 to 235 months, not 210 to 262 months.

Guideline § 4A1.1 (Appendix E) controls the points for prior sentences in

order to compute a defendant’s criminal history category. Depending upon various:

considerations, a defendant could receive 1, 2, or 3 points. Application note 1 states:

“A sentence imposed for an offense committed prior to the

defendant’s eighteenth birthday is counted under this

subsection only if it resulted from an adult conviction.

See § 4A1.2(d).”

Guideline § 4A1.2 (Appendix F) outlines definitions and instructions for

_computing criminal history. Subsection (@) addresses offenses committed to prior to

age eighteen, and provides as follows:

“@) OFFENSES COMMITTED PRIOR TO AGE

EIGHTEEN

(1) ~=—s«‘If the defendant was convicted as an adult

and received a sentence of imprisonment

exceeding one year and one month, add 3

points under § 4Al.1(a) for each such

sentence.

(2) In any other case,

(A) add 2 points under § 4A1.1(b) for each

adult or juvenile sentence to

confinement of at least sixty days if

the defendant was released from such

confinement within five years of his

commencement of the instant offense;

(B) add i point under § 4A1.1(c) for each

adult or juvenile sentence imposed

within five years of the defendant’s

commencement of the instant offense

not covered in (A),”

Section (e) of Guideline § 4A1.2 addresses the applicable time period. Subsection

e (1) provides as follows:

“(e) APPLICABLE TIME PERIOD

(1) Any prior sentence of imprisonment exceeding one

year and one month that was imposed within fifteen

years of the defendant’s commencement of the

instant offense is counted. Also count any prior

sentence of imprisonment exceeding one year and

one month, whenever imposed, that resulted in the

defendant being incarcerated during any part of

such fifteen-year period.”

Sean Harstine’s prior convictions occurred outside the five-year look-back

period for a juvenile sentence but within the fifteen-year look-back period for adult

prior convictions. Therefore he received 8 criminal history points solely because he

jived in North Carolina because the federal government and all other states

considered individuals under 18 years of age to be juveniles.

The North Carolina Session Law that raised the juvenile age from 16 to 18 is

entitled The 2017 Juvenile Justice Reinvestment Act. It became effective on

December 1, 2019. The relevant statutes raising the age are N.C.G.S. § 7B-101 and

N.C.G.S. § 7B-1501, reproduced herein as Appendix H and I.

At the time of briefing in the Fourth Circuit Court of Appeals, petitioner was

aware of the Fourth Circuit decision in United States v. Allen, 446 F.3d 522 (4th Cir.

2006), where it found that the defendant’s prior convictions at the age of 17 were

adult convictions because they were in the North Carolina Superior Court.

Understanding that the North Carolina Legislature had passed the above

mentioned legislation going into effect on December 1, 2019, petitioner requested

the Fourth Circuit to re-visit its decision in Allen on this issue. Said request was

declined, Sean Harstine contends that in declining to re-consider this issue, the

Fourth Circuit failed to correctly analyze the procedures that occurred. It stated:

“Harstine argues that, had he been charged as a juvenile,

the offense would not have counted against him.

However, although he regards as unfair the decision not

to charge him as a juvenile, he does not dispute-and we

conclude—that, under the pertinent Guideline, the court

properly scored this offense. See U.S. Sentencing

Guidelines Manual § 4A1.2(d)(1)(2018).” (Appendix A, p.

2).

It is respectfully urged that the above language indicates that the Fourth

- Circuit was of the opinion that the State of North Carolina had an option to charge

Sean Harstine as a juvenile at the time of his offenses when he was 17 years old.

That is not the case. All persons 16 years of age or older were charged as adults in

North Carolina. If they were under 16 years of age and the State determined they

should be charged as an adult, the case could be transferred from the district court

to the superior court. See N.C.G.S. § 7B-2200. (Appendix I). The procedures have

now been somewhat modified in North Carolina based upon raising the juvenile age

from 16 to 18. See N.C.G.S. § 7B-2200.5. (Appendix J). Therefore the unfairness

was not that Sean Harstine was not charged as a juvenile, because he could not be

in North Carolina. The unfairness was that had his prior convictions been in

federal court, or in any other state, he would not have been charged (at least not

initially) as an adult.

Application note 7 to Guideline § 4A1.2 voices a concern of the Sentencing

Commission and a desire to avoid disparities from jurisdiction to jurisdiction. It is

repeated below.

“Offenses. Committed Prior to Age Eighteen. — Section

4A1.2(d) covers offenses committed prior to age eighteen.

Attempting to count every juvenile adjudication would

have the potential for creating large disparities due to the

differential availability of records. Therefore, for offenses

committed prior to age eighteen, only those that resulted

in adult sentences of imprisonment exceeding one year

and one month, or resulted in-imposition of an adult or

juvenile. sentence or release from confinement on ‘that

sentence within five years of the defendant's

commencement of the instant offense are counted. To

avoid disparities from jurisdiction to jurisdiction in the

age at which a defendant is considered a ‘juvenile,’ this

provision applies to all offenses committed prior to age

eighteen.” (Appendix F).

Petitioner Sean Harstine respectfully contends that North Carolina’s

antiquated lower age of juveniles resulted in him receiving criminal history points

that would not have been assigned had he lived in another state. This resulted in a

higher criminal history category and a higher guideline range. He contends this

disparity denies him equal protection of the laws as required by the Fourteenth

Amendment of the United States Constitution. (Appendix K).

CONCLUSION

For the foregoing reasons, Petitioner Sean Jason Harstine respectfully

requests that a Writ of Certiorari issue to review the decision of the United States

Court of Appeals for the Fourth Circuit affirming his conviction and sentence.

This the 5‘ day of October, 2020.

DUNN, PITTMAN, SKINNER & CUSHMAN, PLLC

Counsel for Petitioner Sean Jason Harstine

By: Put hkl Sth, BE

RUDOLPH.A. ASHTON, III

Panel Attorney

Eastern District of North Carolina

North Carolina State Bar No. 0125

8230 Country Club Road

Post Office Drawer 1389

New Bern, NC 28563

Telephone: (252) 633-3800

Facsimile: (252) 633-6669

Email: RAshton@dunnpittman.com

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2020

HHMI IR RARER RAR RARER ERE RRR ERR RRR ER ERE ERE EE ERR ERE BERR

SEAN JASON HARSTINE, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent

HORII AIR IRA RE RRR ARR IRR ERIK RRR BER EERE BERLE EEE EEE

ENTRY OF APPEARANCE

and

CERTIFICATE OF SERVICE

PRATER RII IR IER AIR RR ERR EER ERE REI REE RE EERIE RSET ERE RE BI

I, Rudolph A. Ashton, III, a member of the North Carolina State Bar, having

been appointed to represent the Petitioner in the United States Court of Appeals for

the Fourth Circuit, pursuant to the provisions of the Criminal Justice Act, 18 U.S.C.

§ 3006A, hereby enter my appearance in this Court in respect to this Petition for a

Writ of Certiorari.

I, Rudolph A. Ashton, III, do swear or declare that on this date, the 5 day of

October, 2020, pursuant to Supreme Court Rules 29.3 and 29.4, I have served the

attached motion for leave to proceed in forma pauperis and petition for a writ of

certiorari on each party to the above proceeding, or that party’s counsel, and on

every other person required to be served by depositing in an envelope containing the

above documents in the United States mail properly addressed to each of them and

-10-

with first-class postage prepaid. The names and addresses of those served are as

follows:

Jennifer P. May-Parker, AUSA

Office of the United States Attorney

Eastern District of North Carolina

150 Fayetteville Street, Suite 2100

Raleigh, NC 27601

Solicitor General of the United States

Room 5616, Department of Justice

950 Pennsylvania Ave., N.W.

Washington DC 20530-0001

This the 5th day of October, 2020.

Respectfully submitted,

RUDOLPH fh ASHTON, III

Panel Attorney,

Eastern District of North Carolina

N.C. State Bar No. 0125

Post Office Drawer 1389

New Bern, North Carolina 28563-1389

Telephone: (252) 6383-3800

Facsimile: (252) 633-6669

Email: RAshton@dunnpittman.com

Subscribed and Sworn to Before Me Cu

eek Ey,

This the 5t day of October, 2020 Sd s %

SLY gtaRyY 2

) Ly 2 pus” 3:

L~ Se x 2 % Oy, ~S ;

Notary Public “nEN SE

My Commission Expires: 31/4 | AOL

-11-

USCA4 Appeal: 19-4384 Doc: 34 Filed: 07/08/2020 Pg: 1 of 4

APPENDIX A

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-4384

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SEAN JASON HARSTINE,

Defendant - Appellant.

' Appeal from the United States District Court for the Eastern District of North Carolina, at

Raleigh. James C. Dever III, District Judge. (5:17-cr-00346-D-2) _ ;

Submitted: April 14, 2020 Decided: July 8, 2020

Before DIAZ and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Rudolph A. Ashton, II, DUNN PITTMAN SKINNER & CUSHMAN, PLLC, New Bern,

North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P.

May-Parker, Assistant United States Attorney, Phillip A. Rubin, Assistant United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,

for Appellee,

Unpublished opinions are not binding precedent in this circuit.

‘

USCA4 Appeal: 19-4384 Doc: 34

Fited: 07/08/2020 Pg: 2o0f4

PER CURIAM:

Sean Jason Harstine appeals the 270-month sentence imposed following his guilty

plea to various drug and firearm offenses. On appeal, he raises several challenges to the

district court’s application of the Sentencing Guidelines. Finding no error, we affirm.

Generally, “{w]e review sentences under a deferential abuse-of-discretion

standard.” United States v. Dennings, 922 F.3d 232, 235 (4th Cir. 2019) (internal quotation

marks omitted). But “[ojn a challenge to a district court’s application of the Guidelines,

we review questions of law de novo and findings of fact for clear error.” United States y.

Hawley, 919 F.3d 252, 255 (4th Cir. 2019).

In calculating Harstine’s criminal history score, the district court assigned 3 criminal

history points for a North Carolina offense, committed wheri Harstine was 17 years old, for

which he was convicted as an adult. Harstine argues that, had he been charged as ajuvenile,

the offense would not have counted against him. However, although he regards as unfair

the decision not to charge him as a juvenile, he does not dispute—and we conclude—that,

under the pertinent Guideline, the court properly scored this offense. See U.S. Sentencing

Guidelines Mamual § 4A1.2(d)(1) (2018).

Next, Harstine contends that, because the investigation into his drug trafficking

conspiracy commenced a month after he finished serving a separate state sentence, the

district court erroneously added two criminal history points for committing the instant

offense while under a criminal justice sentence. See USSG 4A1.1(d). But the relevant

question was when did the conspiracy occur, not when did the investigation begin, and

,

USCA4 Appeal: 19-4384 Doe: 34

Filed: 07/08/2020 Pg: 3 of 4

here, the record clearly contained evidence that the conspiracy overlapped with Harstine’s

state sentence, Thus, we reject this claim.

Turning to Harstine’s offense level, “[w]e review the district court’s calculation of

the quantity of drugs attributable to a defendant for sentencing purposes for clear exror. In

so doing, we afford great deference to a district judge’s credibility determinations and how

the court may choose to weigh the evidence.” United States v. Williamson, 953 F.3d 264,

‘272-73 (4th Cir. 2020) (citation and internal quotation marks omitted). In addition, a court

imposing sentence may “consider any relevant information before it, including

uncorroborated hearsay, provided that the information has sufficient indicia of reliability

to support its accuracy.” United States v. Mondragon, 860. F.3d 227, 233 (4th Cir. 2017)

(internal quotation marks omitted),

Here, Harstine contests the district court’s drug weight finding and application of

enhancements for his role in. the offense and maintaining a premises for purposes of

distributing a controlled substance, See USSG §§ 2D1.1(b)(12), 3B1.1(b). At sentencing,

the district court credited testimony from two law enforcement officers, who. related

information provided by two of Harstine’s coconspirators. Based on evidence showing

that Harstine arranged the logistics of drug transactions and directly exercised control over

one of his associates, whom he used as a middleman between him and his customers, we

conclude that the court properly applied the role-in-the-offense enhancement. See United

States v. Bartley, 230 F.3d 667, 673-74 (4th Cir. 2000). And based on the court’s finding

that Harstine lived in a mobile home that he used both to package drugs and to serve, in

effect, as a dispensary for his middleman, we agree with the court’s decision to apply the

3

r

USGA4 Appeal: 19-4384

Dac: 34 Filed: 07/08/2020 Pg: 4 of 4

maintaining-a-premises enhancement. See USSG § 2D1.{ cmt. n.17. Finally, we discern

no basis for disturbing the court’s drug weight finding, which essentially amounted to a

credibility determination to which we afford great deference,

Harstine also claims, for the first time on appeal, that the district court should have

awatded him a one-level downward adjustment for acceptance of responsibility under

USSG § 3E1.1(b). That guideline gives the government “discretion to determine whether

the defendant’s assistance has relieved it of preparing for trial” by “timely notif[ying] [it]

of his intention to enter a plea of guilty.” United States v. Divens, 650 F.3d 343, 346 (4th

Cir, 2011) (cleaned up). Because Harstine did not cooperate with law enforcement and

requested four. continuances before pleading guilty, the government did not abuse its

discretion in declining to move for the additional adjustment. See USSG § 3E1.1(b).

Therefore, we discern no error, plain or otherwise. See United States v. Muslim, 944 F 3d

154, 167 (4th Cir. 2019) (providing standard of review for unpteserved ‘Guidelines

challenges).

Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED

USCA4 Appeal: 19-4384 Doc: 35-1 Filed: 07/08/2020 Pg: 1 of 1

APPENDIX B

FILED: July 8, 2020

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-4384

(5:17-cr-00346-D-2)

UNITED STATES OF AMERICA

Plaintiff - Appellee

Vv.

SEAN JASON HARSTINE

Defendant - Appellant

JUDGMENT

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA. S. CONNOR, CLERK

USCA4 Appeal: 19-4384 Doc: 38 Filed: 07/30/2020 Pg: 1 of 1

APPENDIX C

FILED: July 30, 2020

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-4384

(5:17-cr-00346-D-2)

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

SEAN JASON HARSTINE

Defendant - Appellant

MANDATE

The judgment of this court, entered July 8, 2020, takes effect today.

This constitutes the formal mandate of this court issued pursuant to Rule

41(a) of the Federal Rules of Appellate Procedure.

/s/Patricia S. Connor, Clerk

APPENDIX D

AO 2458 (Rev, 09/17) Judgment fa a Criminal Case

Sheet |

UNITED STATES DISTRICT COURT

Eastern District of North Carolina

' UNITED STATES OF AMERICA > JUDGMENT IN A CRIMINAL CASE

)

y. )

SEAN JASON HARSTINE } Case Number: 5:17-CR~346-2-D

USM Number: 64300-056

) Curtis R. High

,) Defendant's Attorney

THE DEFENDANT:

Wi pleaded guilty to count(s) _1, 8, 10, 11 and 12 of the Indictment

[CI pleaded nolo contendere to count(s)

‘ which was accepted by the court.

i

[1 was found guilty on count(s)

after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section Nature of Offense Offense Ended Count

21 U.S.C, § 846, 21 US.C. § Conspiracy to Distribute and Possess With Intent to Distribute 5 Grams or 12/5/2016 ‘ I

841(b)(1)(B) More of Methamphetamine and a Quantity of Heroin

The defendant is sentenced as provided in pages 2 through 8 of this judgment. The sentence is imposed pursuant to

the Sentencing Reform Act of 1984.

(The defendant has been found not guilty on count(s)

Olis are dismissed on the motion of the United States.

(1 Count(s)

__ It is ordered that the defendant must notify the United States attomey for this district within 30 days of any change ofname, residence,

or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitytion,

e

the defendant must notify the court and United States aitomey of material changes in economic circumstances.

5/15/2019

Date of Imposition of Judgment

A. Naver

Signatuke of Judge

James C. Dever Ill, United States District Judge

Name and Title of Judge

5/15/2019

Date

Case 5:17-cr-00346-D Document 170 Filed 05/15/19 Page 1 of 8

AO 245B (Rev. 09/17) Judgment in a Criminal Case

Bheet 1A

DEFENDANT: SEAN JASON HARSTINE

CASE NUMBER: 5:17-CR-346-2-D

Title & Section

21 U.S.C, § 841(a)(1), 21

USC. § 8410)(1N(C)

21 U.S.C, § 841(@)(1), 21

U.S.C. § 841(b)(1)(C)

21 U.S.C, § 841(a)(1), 2k

USC. § B4IO)T(C)

ADDITIONAL COUNTS OF CONVICTION ,

Judgment—Page _ 2-“_ of

Nature of Offense Offense Ended Count

Distribution of a Quantity of Heroin and Aiding and Abetting 12/5/2016 8

Possession With the Intent to Distribute a Quantity of Heroin anda = 12/5/2016 - 10

Quantity of Methamphetamine

Possession With Intent to Distribute a Quantity of 12/5/2016 il

Methamphetamine and Alding and Abetting

12

18 U.S,C. § 924(c), 18 U.S.C. Possession of a Firearm in Furtherance of a Drug Trafficking Crime — 12/5/2016

§ 924(0)(1)(A) (i) and 18

USC. §2

and Aiding and Abetting

Case 5:17-cr-00346-D Document 170 Filed 05/15/19 Page 2 of 8

AO 245B (Rev. 09/17) Judgrnent in Criminal Case

Sheet 2 — Imprisonment

Judgment —~ Page 3 of 8

DEFENDANT: SEAN JASON HARSTINE

CASE NUMBER: 5:17-CR-346-2-D

IMPRISONMENT

The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total

term oft ‘

Counts 1, 8, 10 and 11: 210 months per count, to be served concurrently

Count 12: 60 months, to be served consecutively to all other counts ~ (Total term; 270 months) . . 1

The court orders that the defendant provide support for all dependents while incarcerated,

1 The court makes the following recommendations to the Bureau of Prisons:

The court recommends that the defendant receive intensive substance abuse treatment and vocational and educational training opportunities, The court

recommends that the defendant recelve'a mental health assessment and mental health treatment while incarcerated. The court recommends that he be

housed separately from all co-defendants, to include: Brian Allen Gardner and James Madison Parker.

MI The defendant is remanded to the custody of the United States Marshal.

(0 The defendant shall surrender to the United States Marshal for this district:

O at Oam O pm on

as notified by the United States Marshal.

(1 The defendant shall surrender for service of sentence at the institution designated by thé Bureau of Prisons:

1 before 2 p.m, on ‘

(1 as notified by the United States Marshal,

C1 as notified by the Probation or Pretrial Services Office.

RETURN

LT have executed this judgment as follows:

Defendant delivered on fu to

at » With a certified copy of this judgment,

UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

Case 5:17-cr-00346-D Document170 Filed 05/15/19 Page 3 of 8

AO 245B (Rev. 09/17) Judgment in a Criminal Case

Sheet 3 — Supervised Release

Jadgment—Page 4 of 8

DEFENDANT: SEAN JASON HARSTINE

CASE NUMBER: 5:17-CR-346-2-D

SUPERVISED RELEASE

Upon release from imprisonment, you will be on supervised release for a term of : ;

Counts 1 and 12: 5 years per count and a term of 3 years on counts 8, 10, and 11, all such terms shall run concurrently - (Total term: 5 years)

MANDATORY CONDITIONS

1. You must not commit another federal, state or local crime.

2. You must not unlawfully possess a controlled substance.

3. You must refrain from any unlawful use of a controlied substance. You must submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests thereafter, as determined by the court.

(D The above drug testing condition is suspended, based on the court's determination that you

pose a low risk of future substance abuse. (check ffapplicable)

C1 You must make restitution in accordance with 18 U.S.C, §§ 3663 and 3663A or any other statute authorizing a sentence of

restitution. (check if applicable)

ff You must cooperate in the collection of DNA as directed by the probation officer, (cheok if applicable)

C1 You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, ef seq.) as

directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you

reside, work, are a student, or were convicted of a qualifying offense. (check if applicable) *

(J You must participate in an approved program for domestic violence, (check if applicable)

\

‘You must comply with the standard coriditions that have been adopted by this court as well as with any other conditions on the attached

page.

Case 5:17-cr-00346-D Document 170 Filed 05/15/19 Page 4 of 8

AO 245B (Rev. 09/17) Judgment in a Criminal Case

Sheet 3A — Supervised Release

Judgment—Page 5 of 8

DEFENDANT: SEAN JASON HARSTINE

CASE NUMBER: 5:17-CR-346-2-D

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed

because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation

officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

L

S

RR ~

12,

13,

,

You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your

release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time

frame.

After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and

when you must report fo the probation officer, and you must report to the probation officer as instructed,

You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the

court or the probation officer,

You must answer truthfully the questions asked by your probation officer.

‘You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

atrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change,

You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer fo

take any items prohibited by the conditions of your supervision that he or she observes in plain view.

You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so, If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses‘

you from doing so. If you plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10

days in advance is not possible dus to unanticipated-circumstances} you must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been

convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the

probation officer, ,

If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon. (Le. anything that was

designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).

You must not act or make any agreement with a law enforcement agency to act as a confidential human source ot informant without

first getting the permission of the court. .

If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may

require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the

person and confirm that you have notified the person about the risk.

You must follow the instructions of the probation officer related to the conditions of supervision.

USS. Probation Office Use Only

AUS. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this

judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised

Release Conditions, available at: www.uscourts.gov,

Defendant's Signature

Date

Case 5:17-cr-00346-D Document 170. Filed 05/15/19 Page 5 of 8

’

AO 245B (Rev. 09/17) iadgment in a Criminal Case

eet 3C —- Supervised Release

DEFENDANT: SEAN JASON HARSTINE

CASE NUMBER: 5:17-CR-346-2-D

ADDITIONAL STANDARD CONDITIONS OF SUPERVISION

The defendant shall not incur new credit charges or open additional lines of credit without approval of the probation office,

The defendant shall provide the probation office with access to any requested financial information.

The defendant shall participate as directed in a program approved by the probation office for the treatment of narcotic addiction, drug dependency, or

alcohol dependency which will include urinalysis testing or other drug detection measures and may require residence or participation in a residential

treatment facility.

‘

‘The defendant shall participate in a program of mental health treatment, as directed by the probation office.

The defendant shall consent to a warrantless search by a United States probation officer or, at the request of the probation officer, any other law

enforcement officer, of the defendant’s person and premises, including any vehicle, to determine compliance with the conditions of this judgment.

The defendant shall cooperate in the collection of DNA as directed by the probation officer,

‘The defendant shall support-his dependent(s),

Case 5:17-cr-00346-D Documenti170 Filed 05/15/19 Page 6 of 8

Judgment—Page 6 of g

AO 245B (Rev. 09/17) Judgment in s Criminal Case

Sheet 5 —- Criminal Monetary Penalties

Judgment — Page yi of

DEFENDANT: SEAN JASON HARSTINE

CASE NUMBER: 5:17-CR-346-2-D

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

Fine Restitution

$

Assessment JVTA Assessment*

TOTALS $ 500.00 $ , $

C1 The determination of restitution is deferred until , An Amended Judgment in a Criminal Case (AO 245¢) will be entered

after such determination.

C1] The defendant must make restitution (including community restitution) to the following payces in the amount listed below.

Ifthe defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in

the priority order or percentage payment column below, However, pursuant to 18-U.S.C. § 3664(%), all nonfederal victims must be paid

before the United States is paid.

Name of Payee Total Loss** Restitution Ordered Priority or Percentage

TOTALS 8 0.00 $ 0,00

(1 _ Restitution amount ordered pursuant to plea agreement $

{1 The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in fuull before the

fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(0). All of the payment options on Sheet 6 may be subject

to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

( The court determined that the defendant does not have the ability to pay interest and it is ordered that:

C1 the interest requirement is waived forthe [J fine [1] restitution.

C1 theinterest requirement forthe [] fine [1 restitution is modified as follows:

# Justice for Victims of Trafficking Act of 2015, Pub, L. No, 114-22...

+k Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or

after September 13, 1994, but before April 23, 1996, ; .

‘ Case 5:17-cr-00346-D Document 170 Filed 05/15/19 Page 7 of 8

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