Petition for Writ of Certiorari — Justin Cornelius Harris, Petitioner v. United States

No. _________

IN THE SUPREME COURT OF THE UNITED STATES

Justin Cornelius Harris,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

APPENDIX

/s/ Jessica Graf

JASON HAWKINS

Federal Public Defender

Northern District of Texas

TX State Bar No. 00759763

525 Griffin Street, Suite 629

Dallas, TX 75202

(214) 767-2746

(214) 767-2886 Fax

Jessica Graf **

Assistant Federal Public Defender

Northern District of Texas

TX State Bar No. 24080615

525 S. Griffin Street, Suite 629

Dallas, TX 75202

(214) 767-2746

(214) 767-2886

INDEX TO APPENDICES

Appendix A Opinion of Fifth Circuit, CA No. 21-11151, dated May 24, 2022,

United States v. Harris, 2022 WL 1652835 (5th Cir. May 24, 2022)

(unpublished).

Appendix B Judgment and Sentence of the United States District Court for the

Northern District of Texas, entered November 12, 2021.

United States v. Harris, Dist. Court 3:20-CR-482-S.

APPENDIX A

Case: 21-11151

Document: 00516331774

Page: 1

Date Filed: 05/24/2022

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

May 24, 2022

No. 21-11151

Summary Calendar

Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Justin Cornelius Harris,

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:20-CR-482-1

Before Davis, Jones, and Elrod, Circuit Judges.

Per Curiam:*

Justin Cornelius Harris appeals the sentence imposed pursuant to his

guilty plea for felon in possession of a firearm. He argues that his sentence

was erroneously enhanced pursuant to U.S.S.G. § 4B1.2(a)(2) based on a

determination that his prior Texas conviction for robbery by injury under

*

Pursuant to 5th Circuit Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 21-11151

Document: 00516331774

Page: 2

Date Filed: 05/24/2022

No. 21-11151

Texas Penal Code § 29.02(a)(1) was a crime of violence. He concedes

however, that the issue is foreclosed by United States v. Adair, 16 F.4th 469,

470 (5th Cir. 2021), cert. denied, 142 S. Ct. 1215 (2022), and he raised it solely

to preserve its further review by the Supreme Court. The Government has

moved, unopposed, for summary affirmance and, in the alternative, for an

extension of time to file a merits brief.

Adair indeed held that Texas robbery qualifies as a crime of violence

under § 4B1.2(a)(2). Id. Because the Government’s position “is clearly right

as a matter of law so that there can be no substantial question as to the

outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162

(5th Cir. 1969), the Government’s motion for summary affirmance is

GRANTED, the Government’s alternative motion for an extension of time

to file a brief is DENIED, and the judgment of the district court is

AFFIRMED.

2

APPENDIX B

Case 3:20-cr-00482-S Document 44 Filed 11/12/21

Page 1 of 7 PageID 133

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

UNITED STA TES OF AMERICA

v.

JUSTIN CORNELIUS HARRIS

§

§

§

§

§

§

§

JUDGMENT IN A CRIMINAL CASE

Case Number: 3 :20-CR-00482-S(0 l )

USM Number: 12766-509

Marti Raebel Morgan

Defendant's Attorney

THE DEFENDANT:

□

0

□

□

pleaded guilty to count(s)

pleaded guilty to count(s) before the U.S.

Magistrate Judge, which was accepted by the

Court

pleaded nolo contendere to count(s) which was

acceoted bv the Court

was found guilty on count(s) after a plea of not

!!Uilty

Count 1 of the Indictment, filed October 6, 2020

The Defendant is adjudicated guilty of:

Title & Section/ Nature of Offense

18 U.S.C. §§ 922(g)(l ) and 924(a)(2) Possession of a Fireann by a Convicted Felon

Offense Ended

August 14, 2020

The Defendant is sentenced as provided in this Judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.

□

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

D

The [ charging instrument], filed [ date ], is dismissed on the motion of the United States.

It is ordered that the Defendant must notify the U nited States Attorney for this District within 30 days of any change of name, residence,

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

restitution, the Defendant must notify the Court and United States Attorney of material changes in economic circumstances.

November 9, 2021

KAREN GREN SCHOLER

UNITED STATES DISTRICT JUDGE

Name and Title of Judge

November 12 2021

Date of Signature

Case 3:20-cr-00482-S Document 44 Filed 11/12/21

AO 245B (12/20-KGS) Judgment in a Criminal Case

DEFENDANT:

CASE NmvIBER:

Page 2 of 7 PageID 134

Judgment -- Page 2 of 7

WSTIN CORNELIUS HARRIS

3 :20-CR--00482-S(0l)

™PRISONMENT

The Defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of:

45 months as to Count 1 of the Indictment. This term shall run concurrently with any sentence imposed in Case No. F-2057323

pending in the 194th Judicial District Court, Dallas, Texas, as it is related to the instant federal offense. This term shall run

consecutively with any sentence imposed in Case No. F-1871297 pending in the 194th Judicial District Court, Dallas, Texas,

as it is not related to the instant federal offense.

IZi

The Court makes the following recommendations to the Bureau of Prisons:

that the Defendant be allowed to serve bis sentence at FCI Seagoville, Seagoville, Texas or, alternatively, as close to the Dallas

Fort-Worth area as possible. Additionally, the Court recommends that the Defendant be allowed to participate in the

Residential Drug Abuse Program (RDAP), if eligible. The Court further recommends that the Defendant be allowed to

participate in any mental health treatment offered by the Bureau of Prisons.

IZi

The Defendant is remanded to the custody of the United States Marshal.

The Defendant shall surrender to the United States Marshal:

□

□

□

at

□

□

as notified by the United States Marshal.

a.m.

□

p.m.

on

The Defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

□

□

□

before #:## p.m./a.m. on

as notified by the United States Marshal.

as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this Judgment as follows:

The Defendant delivered on

at

to

, with a certified copy of this Judgment.

UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

Case 3:20-cr-00482-S Document 44 Filed 11/12/21

AO 245B (12/20-KGS) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 3 of 7 PageID 135

Judgment -- Page 3 of 7

JUSTIN CORNELIUS HARRIS

3 :20-CR-00482-S(0 l)

SUPERVISED RELEASE

Upon release from imprisonment, the Defendant shall be on supervised release for a term of:

Three (3) years.

MANDATORY CONDITIONS

You must comply with the standard conditions that have been adopted by this Court as well as with any additional conditions on

the attached page.

1.

You must not conunit 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 controlled 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.

□

4.

D

5-

1Z1

6.

□

7-

D

The above drng testing condition is suspended, based on U1e Court's detennination that you pose a low risk of future

substance abuse (Check if applicable).

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).

You must cooperate in the collection of DNA as directed by the probation officer (Check if applicable).

You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.)

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

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

You must participate in an approved program for domestic violence (Check if applicable).

Case 3:20-cr-00482-S Document 44 Filed 11/12/21

AO 245B (12/20-KGS) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 4 of 7 PageID 136

Judgment -- Page 4 of 7

JUSTIN CORNELWS HARRIS

3:20-CR-00482-S(0l)

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 of, report to the Court about, and bring about improvements in your conduct and condition.

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11 .

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 to 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

arrangements (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 to 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 tty 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 due to unanticipated circumstances, you must notify the probation officer

within 72 hours of becoming aware of a change or e)(pected 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 firearrn, ammunition, destructive device, or dangerous weapon (i.e., 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 or infonnant

without first getting the permission of the Court.

If the probation officer detemlines 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.

U.S. Probation Office Use Only

A U.S. 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. I understand additional information regarding these conditions is available at

www.txnp.uscourts.gov.

Defendant's Signature

Date

Case 3:20-cr-00482-S Document 44 Filed 11/12/21

AO 245B (12/20-KGS) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 5 of 7 PageID 137

Judgment -- Page 5 of 7

JUSTIN CORNELIUS HARRIS

3:20-CR-00482-S(0l)

SPECIAL CONDITIONS OF SUPERVISION

The Defendant shall participate in a domestic violence treatment program (i.e. batterer's intervention program and anger management

program) as directed by the probation officer until successfully discharged. The Defendant shall pay the costs of the services rendered.

The Defendant shall participate in mental health treatment services as directed by the probation officer until successfully discharged.

These services may include medications prescribed by a licensed physician. The Defendant shall contribute to the costs of services

rendered (copayment) at a rate of at least $20 per month.

The Defendant shall participate in an outpatient program approved by the U.S. Probation Office for treatment of narcotic, drug, or

alcohol dependency, which will include testing for the detection of substance use or abuse. The Defendant shall abstain from the use of

alcohol and/or all other intoxicants during and after completion of treatment. The Defendant shall contribute to the costs of setvices

rendered (copayment) at a rate of at least $20 per month.

Case 3:20-cr-00482-S Document 44 Filed 11/12/21

AO 245B (12/20-KGS) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 6 of 7 PageID 138

Judgment -- Page 6 of 7

JUSTIN CORNELTTJS HARRIS

3:20-CR-00482-S(0l)

CRIMINAL MONETARY PENALTIES

The Defendant must pay the total criminal monetary penalties under the Schedule of Payments page.

TOTALS

D

D

Assessment

$100.00

Restitution

$.00

Fine

$.00

AV AA Assessment*

$.00

JVTA Assessment**

$.00

The determination of restitution is deferred until

An AmendedJudgment in a Criminal Case (A0245C) will be entered

after such determination.

The Defendant must make restitution (including community restitution) to the following payees in the amount listed below.

If the Defendant makes a partial payment, each payee shall receive an approximately proportioned payment. However, pursuant to 18

U.S.C. § 3664(i), all non-federal v ictims must be paid before the United States is paid.

D

D

D

Restitution amount ordered pursuant to plea agreement $

The Defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before

the fifteenth day after the date of the Judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on the ScheduJe

of Payments page 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:

D the interest requirement is waived for the

D

fine

::J

restitution

D the interest requirement for the

D

fine

D

restitution is modified as follows:

* Amy, Vicky, and Andy Child Pornography Victim AssistaJ1ce Act of 20 18, Pub. L. No. 115-299.

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

Case 3:20-cr-00482-S Document 44 Filed 11/12/21

AO 245B (12/20-KGS) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 7 of 7 PageID 139

Judgment -- Page 7 of 7

JUSTIN CORNELIUS HARRIS

3 :20-CR-00482-S(01)

SCHEDULE OF PAYMENTS

Having assessed the Defendant' s ability to pay, payment of the total criminal monetruy penalties is due as follows:

A

D

Lump sum payments of $ _ _ _ _ _ _ _ _ due immediately, balance due

D not later than

, or

D in accordance with D C, D D, D E, or D F below; or

B

D

Payment to begin immediately (may be combined with D C, D D, D E, or D F below); or

C

D

Payment in equal _ _ _ _ _ (e.g., weekly, monthly, quarterly ) installments of$ _ _ _ _ _ over a period of

_ _ _ _ _ _ (e.g., months or years), to commence _ _ _ _ (e.g. , 30or 60days) after the date of this Judgment;

or

D

D

Payment in equal _ _ _ _ _ (e.g., weekly, monthly, quarterly) installments of$ _ _ _ _ _ over a period of

_ _ __ __ (e.g., months or years), to commence _ _ _ _ (e.g., 30 or 60 days) after release from

imprisonment to a tenn of supervision; or

E

D

Payment during the term of supervised release will commence within _ _ _ _ _ (e.g., 30 or 60 days) after release

from imprisonment.

The Court will set the payment plan based on an assessment of the Defendant's ability to pay at that time; or

F

IZl

Special instructions regarding the payment of criminal monetary penalties:

It is ordered that the Defendant shall pay to the United States a special assessmentof$100.00 for Count l of U1e Indictment,

which shall be due immedia tely. Said special assessment shall b e paid to the Clerk of the Court.

Unless the Court has exl)ressly ordered otherwise, if this Judgment imposes imprisonment, payment of criminal monetary penalties is

due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate

Financial Responsibility Program. are made to the Clerk of the Court.

The Defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

0

Joint and Several

See above for defendant and co-defendant names and case numbers (including the Defendant's number), total amount, joint and

several amount, and corresponding payee, if appropriate.

D

D

D

The Defendant shall pay the cost of prosecution.

The Defendant shall pay the following court cost(s):

The Defendant shall forfeit the Defendant's interest in U1e following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA

assessment, (5) fine principal, (6) fine interest, (7) community restitution, (8) JVT A assessment, (9) penalties, and (10) costs,

including cost of prosecution and court costs.