United States of America v. Jeff Harris

United States Court of Appeals
For the Eighth Circuit
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No. 21-3130
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jeff Harris
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: April 15, 2022
Filed: August 12, 2022
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Before LOKEN, KELLY, and KOBES, Circuit Judges.
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LOKEN, Circuit Judge.
On three occasions in early 2019, Jeff Harris sold capsules of heroin that
contained fentanyl to a confidential source in the St. Louis metro area. A superseding
indictment charged Harris with conspiracy to distribute heroin and fentanyl between
June 2017 and May 2019, possession with intent to distribute heroin, and distribution
of fentanyl in August 2019 resulting in death. Harris pleaded guilty to conspiracy to
distribute and possess with intent to distribute fentanyl. The government dismissed

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the resulting-in-death count, which carried a mandatory minimum 20-year sentence.
See 21 U.S.C. § 841(b)(1)(C). At sentencing, adopting the presentence investigation
report (PSR) without objection, the district court1 determined an advisory guidelines
sentencing range of 15-21 months’ imprisonment, granted the government’s motion
for an upward departure, and sentenced Harris to 70 months’ imprisonment. Harris
appeals, arguing the court erred in granting an upward departure based primarily on
Harris’s role in the August 2019 fentanyl overdose death. We affirm.
In the written plea agreement, the government promised to forgo further federal
prosecution of Harris’s known fentanyl distribution but stated that the government at
sentencing would seek an upward departure and intended to prove Harris’s role in
causing the August 2019 overdose death. The government reaffirmed its intention
at the change of plea hearing and filed a pre-sentencing Motion for Upward Departure
pursuant to USSG § 5K2.1 and § 5K2.0.
At the September 2021 sentencing hearing, the government called Aaron
Ackland in support of its departure motion. Ackland, an FBI Special Agent with
seventeen years’ experience, testified that he was familiar with Harris from drug
trafficking investigations in early 2019. Ackland was informed by the suburban
Maplewood Police Department that it received a 911 call on August 29, 2019
reporting two possible drug overdoses in Maplewood. Police responded. They found
D.W. unconscious in the bathroom of his family home and M.H. unconscious in a
bedroom. D.W.’s mother said she found the unconscious men at 5:00 a.m. and called
911. D.W. regained consciousness after receiving NARCAN. M.H. was pronounced
dead at the scene. Cell phones traced to D.W. and M.H. were found. A post-mortem
exam determined M.H. died of “fentanyl, acetyl fentanyl, and methamphetamine
intoxication.”
1The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
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Agent Ackland testified that D.W. was transported to a local hospital where he
was interviewed by a Maplewood officer. D.W. said he purchased the drugs from a
person he knew as “J.” A consensual search of D.W.’s cell phone showed four calls
to a contact labeled “J.” on August 28. Ackland testified that D.W. was then
interviewed on September 5 at the Maplewood Police Department. D.W. said that
after he called “J.” at his contact phone number on August 28, “J.” arrived in a
vehicle. D.W. purchased four capsules of what he believed was heroin for $20. He
shared the drugs with M.H. in the residence but did not see M.H. ingest them.
D.W. described “J.’ as a “heavyset black male.” Agent Ackland testified that
he was familiar with Harris’s cell phone number. Ackland further testified, “[W]e
took physical features that were very similar to Mr. Harris” and prepared a six-photo
line-up of “heavier set black males with short dreadlock hair.” Asked to circle the
picture he believed to be “J,” D.W. circled the photo of Harris. The FBI then did a
“cell site analysis” of the calls D.W. made to or received from Harris’s phone around
9:00 p.m. on August 28, when D.W. said he purchased the fentanyl-laced heroin. The
analysis showed “that all three parties were at [D.W.’s] address during the time that
[D.W.] described the drug exchange that occurred.”
Agent Ackland testified D.W. said at the end of the September 5, 2019
interview that “he was willing to testify on behalf of the United States against the
defendant, Jeff Harris.” However, D.W. died of another overdose in March 2020. On
cross examination, Agent Ackland conceded that because D.W. had also overdosed
and was rendered unconscious on August 28, he never witnessed M.H. ingest the
drugs D.W. purchased from Harris.
At sentencing, Harris argued the government failed to prove his role in the
death of M.H. because it relied solely on the hearsay testimony of an agent who had
no firsthand knowledge of the sale, and who got his information from D.W., a person
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“who had culpability” and whose veracity could not be verified. The district court
granted the government’s motion for an upward departure:
[C]onsidering the testimony of Agent Ackland and all facts known to the
Court already through the [PSR], the Court concludes that there is a
sufficient basis for an upward departure in these particular instances. A
death occurred, the source of the death was narcotics, fentanyl, sold by
the defendant to one of those who overdosed.
On appeal, Harris argues “the District Court erred in departing upward pursuant
to USSG § 5K2.1 based exclusively on hearsay and speculative testimony, resulting
in an unreasonable sentence.” “Section 5K2.1 permits a district court to depart from
an otherwise applicable Guidelines range if the evidence demonstrates, by a
preponderance, that the defendant’s conduct resulted in death.” United States v.
Nossan, 647 F.3d 822, 826 (8th Cir. 2011) (quotation omitted). Harris argues that
because “[Agent] Ackland’s testimony was predicated on layers of hearsay that he
had obtained through the Maplewood Police Department and the Maplewood Police
had gotten from others,” the district court erred in imposing its upward departure.
Even if this argument was preserved for appeal by Harris contesting the government’s
motion for upward departure, we conclude there was no error and affirm.
Whether M.H.’s death resulted from Harris’s conduct is a factual finding we
review for clear error. United States v. Mousseau, 517 F.3d 1044, 1049 (8th Cir.
2008). At sentencing, the district court may consider relevant information without
regard to its admissibility under the rules of evidence applicable at trial, including
hearsay and double hearsay evidence, provided that the information has “sufficient
indicia of reliability to support its probable accuracy.” USSG § 6A1.3(a); United
States v. Shackelford, 462 F.3d 794, 796 (8th Cir. 2006). When the government
urges a sentence enhancement or upward departure, as in this case, “[w]hat evidence
will be deemed sufficiently reliable to satisfy [the government’s] burden is for the
district court[] to determine, exercising the same fact-finding faculties they are daily
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called upon to utilize in a myriad of situations.” United States v. Wise, 976 F.2d 393,
403 (8th Cir.) (en banc), cert. denied, 507 U.S. 989 (1993). When the government’s
evidence consists of a law enforcement officer’s hearsay testimony as to how a crime
victim or co-conspirator described the defendant’s conduct, the district court may
consider that testimony “if sufficiently reliable reasons demonstrate the testimony is
probably accurate,” a determination “committed to the sound discretion of the district
court.” United States v. Woods, 596 F.3d 445, 448 (8th Cir. 2010) (quotation
omitted). Of course, the court’s finding that the testifying officer was credible, and
its ultimate death-resulted finding, are reviewed for clear error.
The determination of whether hearsay testimony is probably accurate and
therefore sufficiently reliable turns on “factors such as the consistency of the hearsay
testimony, the timing and nature of the declarant’s statements, and the witness’s
impressions of the declarant’s demeanor, as well as other corroborating evidence.”
United States v. Sheridan, 859 F.3d 579, 583-84 (8th Cir. 2017), and cases cited.
Here, D.W.’s statements to law enforcement investigators on two occasions were
consistent. In two separate interviews, D.W. said he bought the drugs from “J.,”
whom D.W. identified as Harris in a photo lineup, and shared the drugs with M.H. in
D.W.’s home just hours before both men were found unconscious from overdoses.
See Sheridan, 859 F.3d at 584 (“consistent nature and timing” of victim’s allegations
“support their reliability”). His admissions exposed D.W. to potential criminal
liability; because D.W. died prior to trial, his statements against interest may have
been admissible even at a trial under the Rule 804(b)(3) of the Federal Rules of
Evidence. See Shackelford, 462 F.3d at 796 (that “statements qualified for at least
one exception from the hearsay rule renders them more reliable”).
In addition, D.W.’s statements were corroborated by non-hearsay evidence.
D.W. described a purchase of capsules containing undisclosed fentanyl that mirrored
three controlled buys from Harris described in the PSR and admitted by Harris in his
guilty plea. D.W.’s cell phone call logs and Agent Ackland’s cell site analysis placed
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D.W. and Harris near one another at the time of the alleged purchase. And the cell
site analysis of M.H.’s phone did not identify any movement by M.H. after D.W.
shared the purchased fentanyl, supporting the contention that the fatal overdose
resulted from the drugs D.W. purchased from Harris, not from any subsequent
purchase after D.W. lost consciousness.
On this record, the district court did not abuse its discretion in concluding that
Agent Ackland’s testimony, to the extent it included hearsay, bore sufficient indicia
of reliability to support its use in sentencing Harris. Accordingly, the court did not
clearly err in finding that the government proved by a preponderance of the evidence
that a death resulted from Harris’s conduct and then granting the government’s
motion for an upward departure. Departing upward, the court imposed a sentence of
70 months’ imprisonment. This sentence is consistent with upward departures we
have approved under § 5K2.1 for drug distribution conduct that resulted in an
overdose death. See United States v. Reif, 920 F.3d 1197, 1199 (8th Cir. 2019) (96
months); United States v. Bollinger, 893 F.3d 1123, 1127 (8th Cir. 2018) (130
months); Nossan, 647 F.3d at 827 (60 months). The court did not abuse its discretion
by imposing a substantively unreasonable sentence.
The judgment of the district court is affirmed.
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