United States of America v. Joseph Harper

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 14, 2023*
Decided February 15, 2023
Before
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
CANDACE JACKSON‐AKIWUMI, Circuit Judge
No. 22‐2418
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH HARPER,
Defendant-Appellant.
Appeal from the United States
District Court for the Western District of
Wisconsin.
No. 18‐cr‐166‐wmc‐1
William M. Conley,
Judge.
O R D E R
Joseph Harper appeals the denial of his motion for relief under the First Step Act
of 2018. We affirm.
* The United States filed a notice of noninvolvement and is not participating in
this appeal. After examining the appellant’s brief and the record, we have concluded
that the case is appropriate for summary disposition. See F ED. R. A PP. P. 34(a)(2).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22‐2418 Page 2
In April 2019, Harper pleaded guilty to conspiring to distribute 500 grams or
more of a mixture or substance containing a detectable amount of cocaine. See 21 U.S.C.
§§ 841(a)(1), 846. In his plea agreement, Harper agreed that he had a prior state
conviction for a “serious drug felony.” Because the government filed a notice of
enhancement under 21 U.S.C. § 851, Harper was therefore subject to a statutory‐
minimum, ten‐year sentence. In July 2019, the district court sentenced Harper to
144 months in prison—a substantial downward variance from the guidelines range of
360 months to life. Harper did not appeal his sentence or conviction.
In June 2022, Harper moved for relief under the First Step Act, which narrowed
the category of offenses that can trigger a ten‐year statutory minimum sentence under
§ 841(b)(1)(B). See Pub. L. No. 115‐391, § 401(a)(2)(B), 132 Stat. 5194, 5220–21 (2018);
United States v. Godinez, 955 F.3d 651, 654–55 (7th Cir. 2020). The Act, which was enacted
in December 2018, changed the triggering predicate crime from a “felony drug offense”
to a “serious drug felony.” Harper argued that his prior conviction did not qualify as a
“serious drug felony” under the Act, so he should not have been subject to the § 851
enhancement.
The district court denied the motion for two reasons. First, Harper, having been
sentenced after the Act’s enactment, already received its benefits at sentencing; and if
not, he should have raised the argument at that time or at least on direct appeal.
Second, Harper, in challenging the § 851 enhancement, misapprehended the particular
conviction that formed the basis of the enhancement: the pertinent conviction was not
the Dane County conviction that Harper had identified, but instead one from
Milwaukee County for cocaine possession with intent to distribute.
On appeal Harper argues that the district court misunderstood which prior
conviction led to the § 851 enhancement, and he insists he did not receive the First Step
Act’s benefits because the court relied upon a non‐qualifying prior conviction. But
nothing in the record bears this out. To the contrary, the § 851 notice, plea agreement,
plea hearing transcript, and Harper’s sentencing memorandum all invoke the
Milwaukee County conviction. To the extent Harper suggests that the sentencing
transcripts would show otherwise, he did not provide us with those transcripts, as
required. See F ED. R. APP . P. 10(b)(2). Regardless, we agree with the district court that
the normal process to challenge a potential sentencing error is by direct appeal or
collateral review. See United States v. Martin, 21 F.4th 944, 946 (7th Cir. 2021). Harper
was not entitled to short‐circuit this process.
AFFIRMED

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