Criminal Practice – Flight to Thailand didn’t show “responsibility”

The district court did not err in declining to reduce the defendant’s sentence on grounds that he accepted responsibility for his offenses, since he fled the country before his initial sentencing hearing. However, the defendant should have been granted leave to redact information about his wife and child in his sentencing memorandum.

Background

Appellant Christopher Harris pled guilty to knowingly or intentionally manufacturing marijuana. Before his sentencing hearing, he cut his ankle monitor and escaped to Thailand, where he married and had a child with a Thai national. He was ultimately arrested and sent back to the U.S. for sentencing.

Prior convictions made Harris a career offender subject to a Guidelines range of 360 months to life. Because of his escape to Thailand, the district court declined a requested acceptance-of-responsibility reduction but varied the sentence downward to 240 months anyway because the prior convictions were primarily marijuana-related.

Harris’s conviction was later vacated under Apprendi v. New Jersey, 530 U.S. 466 (2000). He agreed to re-plead guilty to conspiracy to distribute 100 or more marijuana plants, and the government thus declined to pursue an enhancement for a prior drug offense. Notwithstanding the drop in the Guidelines range, the district court again sentenced Harris to 240 months, reasoning that Harris was largely in the same position as before. Finally, the district court declined to seal Harris’s sentencing memorandum, concluding that it contained only routine information. This appeal followed.

Sentence reduction

The district court did not clearly err in declining to apply the acceptance-of-responsibility reduction. The district court ruled that it was “reinstat[ing]” Harris’s prior sentence (which, standing alone, would likely be procedurally unreasonable), but it listened to the defense’s arguments and expressly addressed each of them, explaining and incorporating by reference its reasons for dismissing each of Harris’s mitigation arguments. In context, the district court’s intention to “reinstate” Harris’s sentence merely meant that it found no reason to impose a different one, not that it would not consider any new evidence. Whether or not this court agrees with the district court’s assessment, there is no procedural error here for failure to consider that evidence.

Harris received an enhancement under Sentencing Guidelines § 3C1.1 for his escape to Thailand pending sentencing. After having obstructed justice, Harris must show that he has done something atypical or beyond the ordinary course either to take responsibility or to minimize the effects of his own obstruction to merit the reduction.

Harris primarily argues that his post-conviction rehabilitative efforts demonstrate extraordinary acceptance of responsibility, but the record doesn’t contain any testimony or evidence to indicate whether his participation in such programs was atypical compared to other inmates and those who ordinarily receive the reduction. Harris’s flight to Thailand clearly evinced a desire to evade responsibility indefinitely, if not permanently. Nor did he voluntarily cease his obstructive conduct. Thus, the district court did not clearly err when it concluded that Harris’s extraordinary escape continued to outweigh other acts of contrition.

N.C. kidnapping offense

Kidnapping under North Carolina law is a “crime of violence” under § 4B1.2 of the Guidelines. Harris has not indicated how the addition of kidnapping to the list of enumerated offenses might conflict with the Guideline. Nor has he identified how its addition would be inconsistent with any law. Absent a showing of any such conflict, the commentary’s enumeration of kidnapping is authoritative and binding, and this court therefore concludes that generic kidnapping is a crime of violence under § 4B1.2.

Kidnapping in the second degree — Harris’s offense — occurs when “the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted.” This court has already held that kidnapping under North Carolina law fits within the generic definition of the offense. Although second-degree kidnapping is less severe because of the mitigating factor of releasing the victim unharmed, none of the elements of the kidnapping offense are negated by the absence of actual physical injury to the victim. Accordingly, the reduced severity of second-degree kidnapping doesn’t change the fact that kidnapping, as a whole, categorically fits within the generic definition of the offense. Thus, Harris’s conviction for second-degree kidnapping is a crime of violence under § 4B1.2.

Filing to be sealed

The district court should have allowed Harris to file his sentencing memorandum under seal and required him to file a publicly accessible version that is redacted to the extent that it identifies the defendant’s family and the nature of his cooperation, if any, with law enforcement. Harris’s sentencing memorandum contained private and personal details about Harris and his wife and child, including photographs. As a general rule, the need to protect the well-being of a criminal defendant’s family members (and the defendant himself) is even more elevated if judicial records suggest that the defendant may have cooperated with law enforcement.

Here, the district court appropriately decided not to restrict public access to the entire sentencing memorandum, as only select parts contained sensitive information. But the court erred by not granting the less restrictive remedy of allowing Harris to file a redacted version of the memorandum. The minor redaction here of the names of Harris’s wife and child and their photographs would protect their privacy interests without undermining any of the public interest in access to the judicial process, as such information is not material to understanding Harris’s case.

The court therefore reverses the denial of Harris’s motion to seal and remands for the filing of a redacted version of the memorandum for public records.

Affirmed in part, reversed in part, and remanded for the limited purpose of sealing Harris’s sentencing memorandum and requiring Harris to file a redacted version to protect the privacy and well-being of his family.

United States v. Harris (Lawyers Weekly No. 001-088-18, 20 pp.) (Gregory, J.) No. 16-4398; May 21, 2018; from DSC at Charleston (Houck, J.) Jill Eskin Major HaLevi for Appellant; Robert Nicholas Bianchi for Appellee. 4th Cir.