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United States v. Harris

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


August 25, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ROY B. HARRIS, REG. NO. 05421-025, DEFENDANT.

The opinion of the court was delivered by: Murphy, District Judge

MEMORANDUM AND ORDER

Two motions are pending: a motion for a reduction of sentence pursuant to the provisions of 18 U.S.C. § 3582(c)(2) filed pro se by Roy Harris on March 6, 2008 (Doc. 37), and a motion to reduce sentence filed by appointed counsel on July 28, 2009 (Doc. 41). The Government filed a response to counsel's motion on August 12, 2009 (Doc. 44). In a nutshell, the Government argues that Harris is not entitled to a reduction in his guideline offense level following the retroactive amendment to the crack cocaine guideline because Harris's relevant conduct is in excess of 4.5 kilograms of crack cocaine. See United States v. Forman, 553 F.3d 585, 590 (7th Cir. 2009) (stating that the guideline amendment "affects only defendants who are responsible for distributing fewer than 4.5 kilograms of crack cocaine").

But this Court never made a specific finding that Harris's relevant conduct exceeds 4.5 kilograms of crack cocaine. The Court only found that Harris's relevant conduct exceeded 1.5 kilograms of crack cocaine (see PSR, para. 18), because this was the only finding necessary to put Harris at an Offense Level 38, the level at which he was sentenced in April 2001. While the PreSentence Report includes a paragraph which notes that a cooperating witness (Harris's wife) estimated that Harris had cooked 20 kilograms of crack cocaine at their house, the Court never made a determination that the entire amount should be attributed to Harris. For this reason, the Court finds the Harris is eligible for relief under Forman.

Because counsel's motion encompasses Defendant's pro se arguments, the Court DENIES as moot the pro se motion (Doc. 37). Counsel asks the Court to reduce Defendant's offense level from 35 to 33; the Court GRANTS that request and, by separate written order, reduces Harris's sentence from 235 months to 188 months. Except as provided herein, all provisions of the Judgment dated April 25, 2001, remain in effect.

IT IS SO ORDERED.

G. Patrick Murphy United States District Judge

20090825

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