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Elvin Harris v. United States of America

October 7, 2011

ELVIN HARRIS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Joanna Seybert, U.S.D.J.

MEMORANDUM & ORDER

SEYBERT, District Judge:

Petitioner Elvin Harris ("Petitioner") petitions this Court pursuant to 28 U.S.C. § 2255 to vacate his sentence and conduct a resentencing. On July 20, 2011, the Court conducted an evidentiary hearing and reserved judgment. For the reasons that follow, Petitioner's application is GRANTED.

BACKGROUND

In January 2003, Petitioner, a member of the Bloods gang, was arrested and charged in an eight-count Indictment for offenses arising out of a series of armed robberies in the Hempstead area of Nassau County, New York. (Pet. Ex. A, Pet. Aff. ¶ 2; Gov't Resp. 3.) Shortly after his arrest, his court- appointed attorney, Anthony LaPinta, Esq. ("LaPinta"), "upon learning of the facts of the case and the various admissions that [Petitioner] gave to his involvement in those crimes . . . tried to strike a cooperation agreement" with the U.S. Attorney's Office. (Tr. 6.)*fn1 On June 25, 2004, after meeting with the U.S. Attorney's Office approximately three-to-five times to discuss "the historical background of the Bloods gang and [Petitioner's] involvement in the organization that was present in Hempstead" (Tr. 7), the parties entered into a cooperation agreement ("Agreement") (Pet. Ex. B, Cooperation Agreement). The Agreement provided, in part, that Petitioner:

(1) plead guilty to Counts Three, Four, Seven and Eight of the Superseding Indictment charging violations of 18 U.S.C. *fn2 § 1951(a) and 18 U.S.C. § 924(c) (Pet. Ex. B. ¶ 1); and

(2) "provide truthful, complete and accurate information and . . . cooperate fully with the [U.S. Attorney's] Office" (Pet. Ex. B. ¶ 3).

In exchange, if the Government determined that Petitioner "cooperated fully, provided substantial assistance to law enforcement authorities and otherwise complied with the terms of [the Agreement]," it would file a 5K1.1 motion on his behalf, permitting the Court to impose a sentence below the applicable Sentencing Guidelines range and any mandatory minimums. (Pet. Ex. B. ¶ 6.) The Agreement further provided that:

Should it be judged by the [U.S. Attorney's] Office that [Petitioner] . . . has committed or attempted to commit any further crimes, or has otherwise violated any provision of this [A]greement, [Petitioner] will not be released from his plea of guilty but this Office will be released from its obligations under this [A]greement, including (a) not to oppose a downward adjustment of three levels for acceptance of responsibility . . . , and (b) to file the [5K.1.1] motion . . . . (Pet. Ex. B. ¶ 8 (emphasis added).)

On June 25, 2004, Petitioner pled guilty before the undersigned to the Counts agreed upon in the Agreement and described his involvement in the armed robberies for which he was arrested. (Pet. Ex. C, Transcript of Pleading.) The first took place on or about January 4, 2003 and involved the robbery of a Chinese-food deliveryman. Petitioner and his co-defendant placed a false order for delivery. When the deliveryman arrived, they restrained him, threatened him with a handgun, ordered him to "give it up," and "knocked him out." (Pet. Ex. C, at 18-19.) The second took place on or about January 6, 2003 and involved the robbery of an oil delivery man. Petitioner and the same co-defendant "walked in front of the oil delivery man and brandished a handgun and told him to give [them] the money." (Pet. Ex. C., at 22.) This Court accepted Petitioner's guilty plea and scheduled sentencing for September 2004. (Pet. Ex. C, at 25.) Sentencing was adjourned multiple times so Petitioner could continue to cooperate with the Government. During this time, Petitioner was incarcerated in the Nassau County Correctional Center.

On July 29, 2005, the Government ultimately decided that Petitioner provided "substantial assistance in the prosecution of the Bloods violent street gang," and submitted a 5K1.1 letter-motion stating that:

Harris' cooperation was helpful in providing useful background information on the history, formation and activities of the Bloods on Long Island. In addition, Harris, has provided information about his unindicted co-conspirator and Blood member Dougie Young. This information may assist in a future prosecution of Young. (Pet. Ex. D, 5K1.1 Letter.)

A sentencing hearing was held before the undersigned on September 16, 2005. (Pet. Ex. E, Transcript of Sentencing.) At the hearing, the Court discussed the sentence recommended by the Probation Department in the presentence report ("PSR"): The robbery counts (Counts Three and Four) each carried a Guidelines sentencing range of 84 to 105 months,*fn3 to run concurrently, and the firearms charges (Counts Seven and Eight) carried mandatory minimum sentences totaling 30 years, to run consecutive to the sentence imposed for Counts Three and Four. (Pet. Ex. E, at 4.) Probation recommended a term of 444 months--the minimum sentence permitted without the Government's 5K1.1 motion.

At this point, however, LaPinta assumed that, given the Government's 5K1.1 motion, the Court would sentence Petitioner to a total of 84 to 105 months--the applicable Guidelines range. In his experience, he has never seen a Court sentence a client who had ...


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