1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

TYRONE K. HARRIS,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United St

for the Southern District of 

No. 96-01235—James L. Gra

Argued: February 

Decided and Filed: Feb

Before: NELSON, COLE, and 

____________

COUNSE

ARGUED: Melynda W. Cook, SCincinnati, Ohio, for AppellaASSISTANT UNITED STATES Ohio, for Appellee. ON BRIESCHAD, BUDA & COOK, CincinGary L. Spartis, ASSISTANATTORNEY, Columbus, Ohio, fo
2 Harris v. United States No. 97-4309

_________________

OPINION

_________________

DAVID A. NELSON, Circuit Judge. Tyrone Harris was

sentenced to imprisonment for 87 months after he pleadedguilty to a charge of possessing more than 500 grams ofcocaine with intent to distribute it, a violation of 21 U.S.C.§§ 841(a)(1) and 841(b)(1)(B)(ii). On the advice of counsel,Mr. Harris voluntarily dismissed an appeal of his sentence.He later had a change of heart (and a change of lawyers),which led to the filing of a motion to vacate the sentencepursuant to 28 U.S.C. § 2255.

The § 2255 motion rested on the proposition that Mr.

Harris was denied effective assistance of counsel as a resultof his first lawyer’s failure to object to the manner in whicha presentence investigation report calculated Harris’ criminalhistory score and his base offense level under the UnitedStates Sentencing Guidelines. (The key issue is whether Ohiomisdemeanor convictions should be assigned criminal historypoints where the convictions resulted in “PNC” sentences ofone year or more.) The district court denied the motion, andMr. Harris appeals. We see no merit in the objections Harrissays his lawyer ought to have raised, and we shall affirm thedistrict court’s order.

I

With a co-defendant, James Bridges, Mr. Harris made

repeated sales of cocaine powder and cocaine base to agovernment informant during the summer and fall of 1995.Harris was arrested in October of that year. A search of hishouse at the time of the arrest disclosed substantial quantitiesof cocaine powder, cocaine base and marijuana, as well asseveral firearms.

A federal indictment handed up against Harris and Bridges

in December of 1995 contained 12 counts naming Harris.Pursuant to a plea agreement, Harris pleaded guilty to a single
No. 97-4309 Ha

count of possessing cocaine with remaining charges against him we

A probation officer prepare

calculating Mr. Harris’ sentence roffense level and his criminal hsentencing guidelines. Mr. Harris to the calculations, although he wato do so.

In recognition of substantial as

Harris to the government in otheStates moved for a six-level downbase offense level. The district thereby reducing the guideliimprisonment for 87-108 months. range would have been 168-210 ma sentence at the bottom of the rev

Despite his receipt of a relative

after he had voluntarily dismissed a Mr. Harris moved for relief undedistrict court denied the motionappealability as to Harris’ claim of denied a certificate of appealabiclaims. Harris filed a notice of apdenial only, but this court found thappellate jurisdiction over the denitself. See Harris v. United StateCir. 1999). We later declined to issof appealability, so the ineffective aone now before us.

II

Mr. Harris argues that he was den

counsel insofar as his lawyer failed of two Ohio misdemeanor convicthe criminal history score. One odriving with a suspended licensdisorderly conduct. Under U.
4 Harris v. United States No. 97-4309

conviction for either of those particular offenses should not becounted in calculating a criminal history score for a drugoffender unless the conviction resulted in a sentence ofprobation for at least one year or imprisonment for at least 30days. Mr. Harris contends that neither of his convictionsresulted in such a sentence.

The contention is wrong. Although Mr. Harris was not

sentenced to supervised probation, he was sentenced to “2years PNC” on one conviction and “1 year PNC” on the other.Ohio courts use “PNC” as shorthand for “provided noconvictions” – a condition on which a sentence ofimprisonment is suspended. See City of Columbus v. Davis,No. 93APC08-1170, 1993 WL 531290, at *1 (Ohio App. Dec.23, 1993). As a form of conditional discharge, a PNCsentence is the “functional equivalent of unsupervisedprobation.” United States v. Gay, Nos. 98-4178, 98-4179,1999 WL 1111517, at **6-7 (6th Cir. Nov. 24, 1999); cf.United States v. Miller, 56 F.3d 719, 721-22 (6th Cir. 1995).A sentence of one or more years “PNC” thus qualifies under§ 4A1.1(c) as a term of probation of at least one year. SeeGay, 1999 WL 1111517, at **7.

Because an objection to inclusion of Mr. Harris’

misdemeanor convictions in the calculation of his criminalhistory score would have been futile, Harris cannot show thathis attorney was constitutionally “ineffective” in failing tomake such an objection. See Strickland v. Washington, 466U.S. 668, 687-96 (1984).

III

Mr. Harris also argues that his attorney should have

objected to the drug quantities used in establishing his baseoffense level under the guidelines. Harris suggests that theprobation officer who prepared the presentence reportimproperly included drug quantities that were based onimmunized statements Harris gave pursuant to his pleaagreement and on statements of a co-conspirator and aconfidential informant. It is plain on the face of thepresentence report, however, that the only drugs used in

No. 97-4309 Hacalculating Harris’ base offense levsearch of his house and those informant in corroborated transsubstantively correct, if syntacticalthat “[t]he defendant is not being athat were referred to by the codefendant himself.” We have dochecks out.

Mr. Harris further suggests that t

excluded drugs associated with chcount on which he was convicted. however, is that “in a drug distribtypes of drugs not specified in the be included in determining the offeof the same course of conduct or paplan as the count of conviction.” U(backg’d); see also United States v717 (6th Cir. 1994), and United S1321, 1327 (6th Cir. 1990), cer(1991). It is clear to us that all of Harris for sentencing purposes wrelevant course of conduct – and Hcontrary.

AFFIRMED.