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United States v. Harper

United States District Court, E.D. Michigan, Southern Division

April 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DELANO HARPER, Defendant.

          ORDER DENYING DEFENDANT'S MOTION OBJECTING TO THE PROSECUTOR'S FILING FOR SENTENCING ENHANCEMENT PURSUANT TO 21 U.S.C. § 851 (DOC. 33)

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         This matter is presently before the Court on defendant Delano Harper's “motion objecting to the prosecutor's filing for sentencing enhancement pursuant to” 21 U.S.C. § 851. (Doc. 33). For the reasons stated below, Harper's motion is DENIED.

         I. Background

         The Government filed a complaint against defendant Delano Harper on April 5, 2017. (Doc. 1). On June 14, 2017, Harper was indicted on four counts:

(1) possession with intent to distribute a controlled substance (cocaine) in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B);
(2) possession with intent to distribute a controlled substance (heroin) in violation of 21 U.S.C. § 841(a)(1);
(3) possession with intent to distribute a controlled substance (marijuana) in violation of 21 U.S.C. §§ 841(a)(1); and
(4) possession with intent to distribute a controlled substance (marijuana) in violation of 21 U.S.C. §§ 841(a)(1).

(Doc. 16 at PageID 41-42).

         The Government filed a Notice of Penalty Enhancement on September 12, 2017. (Doc. 27). The Notice established Harper's prior convictions for (1) delivery/manufacture of a controlled substance, a violation of M.C.L. § 333.7401(2)(a)(4), in the Third Judicial Circuit of Michigan on December 9, 1999; and (2) delivery/manufacture of a controlled substance, a violation of M.C.L. § 333.7401(2)(a)(4), in the Third Judicial Circuit of Michigan on September 22, 2006. (Doc. 27 at PageID 84-85).

         Harper pleaded guilty to Counts One and Two on September 14, 2017. (Doc. 29). Count One charged Harper with possession with intent to distribute at least 500 grams of cocaine. Individuals convicted of this offense shall “be sentenced to a term of imprisonment which may not be less than 5 years.” 21 U.S.C. § 841(b)(1)(B). But where an individual commits this offense “after a prior conviction for a felony drug offense has become final, ” they “shall be sentenced to a term of imprisonment which may not be less than 10 years. . . .” Id. Harper's Rule 11 Plea Agreement states that Count One carried a mandatory minimum penalty of 10 years' imprisonment. (Doc. 29 at PageID 88). The parties agreed to a 120 month guideline range. (Doc. 29 at PageID 90). The agreement permits Harper to withdraw from the agreement and withdraw his guilty plea if the Court imposes a sentence higher than the maximum allowed by Paragraph 3 of the agreement. (Doc. 29 at PageID 92).

         Harper filed the present motion, objecting to the prosecutor's filing for sentencing enhancement pursuant to” 21 U.S.C. § 851, on March 22, 2018. (Doc. 33).

         II. Analysis

         Harper argues that his 1999 and 2006 convictions do not justify a sentencing enhancement pursuant to 21 U.S.C. § 851 because the prior convictions did not involve ...


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