United States Court of Appeals

For the Eighth Circuit

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No. 17-2971

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Jim R. Harris

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - Cape Girardeau

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Submitted: September 28, 2018

Filed: October 5, 2018

[Unpublished]

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Before KELLY, ERICKSON, and GRASZ, Circuit Judges. 

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PER CURIAM.

Jim Harris pleaded guilty to Hobbs Act robbery and two firearms charges in

2011, initially received a sentence enhanced under the Armed Career Criminal Act,

and was later granted 28 U.S.C. § 2255 relief and resentenced based on Johnson v.
United States, 135 S. Ct. 2551 (2015). Proceeding pro se, he appeals the new

sentence imposed by the district court. We affirm. 1

Harris challenges the district court’s decision to impose his federal sentence

consecutively to an undischarged state sentence he is serving for assault. Even

assuming the district court had authority at resentencing to impose a concurrent

sentence, but see 18 U.S.C. § 924(c)(1)(D) (no prison term imposed for, inter alia,

possession of firearm in furtherance of crime of violence shall run concurrently with

any other term of imprisonment); United States v. Gonzales, 520 U.S. 1, 5, 11 (1997),

we reject this challenge. The Guidelines provided that the district court had

discretion to impose a consecutive sentence because the assault was not relevant

conduct to Harris’s federal offenses, given that he committed the assault three weeks

later at a different location. See U.S.S.G. § 5G1.3(b)(2) (if defendant is subject to

undischarged prison term that resulted from another offense that is relevant conduct

to instant offense, sentence for instant offense shall run concurrently to remainder of

undischarged prison term), (d) (if, inter alia, § 5G1.3(b)(2) does not apply, court may

run sentence for instant offense concurrently, partially concurrently, or consecutively

to remainder of undischarged prison term); United States v. Hernandez, 712 F.3d 407,

409 (8th Cir. 2013) (discussing factors considered in determining whether offense is

relevant conduct). The district court’s decision to order that Harris serve his federal

sentence consecutively with his state sentence was not unreasonable, as the district

court considered the 18 U.S.C. § 3553(a) factors, specifically discussing the

seriousness of Harris’s crimes, criminal history, and efforts at rehabilitation. See

United States v. Benson, 888 F.3d 1017, 1019 (8th Cir. 2018) (standard of review;

when deciding whether to impose sentence concurrently or consecutively, district

court must consider § 3553(a) factors).

The Honorable Stephen N. Limbaugh, Jr., United States DistrictJudge for the

1

Eastern District of Missouri.

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Harris also challenges the district court’s assessment of two criminal history

points under U.S.S.G. § 4A1.1(d). We conclude the district court did not plainly err

in adding these criminal history points, because Harris did not object to the

resentencing report, which reflected that he was on parole when he committed the

instant offenses, and the points did not affect his Guidelines range. See MolinaMartinez v. United States, 136 S. Ct. 1338, 1343 (2016) (under plain-error review,

defendant must show, inter alia, that alleged error affected his substantial rights,

which ordinarily means “a reasonable probability that, but for the error, the outcome

of the proceeding would have been different”). 

In his remaining arguments, Harris contendsthat the district court breached his

plea agreement in the assault case that provided he would serve his state and federal

sentences concurrently, suggests that the government violated his due process rights

in proceedings prior to his guilty plea, and claims that he received ineffective

assistance of counsel. We reject the claim based on Harris’s plea agreement in the

state case, as the district court was not bound by the agreement. See United States v.

Sackinger, 704 F.2d 29, 32 (2d Cir. 1983) (absent participation of federal authorities

in state plea bargain, federal court is not bound by terms of plea agreement between

defendant and state authorities). We conclude that the government-misconduct claim

does not warrant relief. Cf. United States v. Boyce, 564 F.3d 911, 918 (8th Cir. 2009)

(discussing requirements for due process claim based on government misconduct at

resentencing). Finally, we decline to consider the ineffective-assistance-of-counsel

claim in this direct appeal. See United States v. Soriano-Hernandez, 310 F.3d 1099,

1105 (8th Cir. 2002) (ineffective assistance of counsel is generally not basis for direct

appeal and instead should be properly raised in § 2255 action).

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