United States v. Davis, No. 10-5234

Decided: May 9, 2012

Davis was charged with robbing a store involved in interstate commerce at gunpoint in violation of 18 U.S.C. § 1951(a) (“Count One”), using and carrying a firearm during a crime of violence and possessing it in furtherance of that crime in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(1)(C)(2) (“Count Two”), and being a felon in possession of a handgun in violation of 18 U.S.C. § 922(g)(1) (“Count Three”).  Davis’ initial Guideline range was 114 to 121 months, but Davis provided substantial information and the Government moved for a four-level reduction pursuant to USSG § 5K1.1.  The court granted the motion and sentenced Davis to 86 months.

The Government later filed a Rule 35(b) motion to reduce Davis’ sentence by an additional 26 months based on his cooperation.  The robbery victim was unable to testify, but a victim coordinator said that the crime caused the victim to feel as though he needed to have weapons in order to protect himself.  The officers on scene testified that Davis attempted to reach his gun while resisting arrest and believed he was under the influence of alcohol or drugs.  In granting a 14-month reduction, the district court noted that it had discretion to consider factors other than the defendant’s cooperation in ruling on a 35(b) motion, including in this case the violent nature of the offense, Davis’ prior record, and his prior reduction.  Davis appealed and contends the court’s consideration of factors other than cooperation requires vacating his sentence.

The Fourth Circuit first found that it had jurisdiction to hear the appeal.  Citing United States v. Pridgen, the court noted that an appeal from a denial of a Rule 35(b) motion is considered a final sentence governed by 18 U.S.C. § 3742.  64 F.3d 147, 149 (4th Cir. 1995).  Section 3742(a)(1) allows for challenges to the lawfulness of the method used by the district court in making its sentencing decisions. Because Davis is challenging the validity of the district court’s sentencing process, and thus whether the sentence was lawfully imposed, the Fourth Circuit had appellate jurisdiction under § 3742.  United States v. Ruiz, 536 U.S. 622, 628 (2002).

Next, the Fourth Circuit considered, de novo, whether the district court erred in including factors other than cooperation in ruling on the Government’s 35(b) motion for a reduction.  Davis argues that the 35(b) hearing is an improper venue to reconsider other sentencing factors, as such factors should only be considered at the initial sentencing hearing.  Addressing this issue of first impression, the Fourth Circuit held that a district court may permissibly consider factors other than substantial assistance when deciding the extent of a sentence reduction under 35(b).

Statutory construction begins with the plain language of the statute and nothing in 35(b) restricts the district court from considering factors other than assistance in determining the extent of the reduction.  Allowing the district court to consider all relevant factors is consistent with the broad sentencing discretion a district court has.  Furthermore, 18 U.S.C. § 3553(a) requires a sentencing court to consider other factors.  Agreeing with Davis would preclude sentencing courts from considering a range of factors in sentencing a defendant, some of which, particularly a defendant’s criminal history and the nature of the crime, are quite serious considerations.

This decision is consistent with decisions of most other circuit courts who have addressed this issue.  The Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have all held that the district court correctly considered factors other than substantial assistance when assessing sentence reduction under 35(b).  These results indicate the importance of imposing appropriate sentences on defendants by balancing all pertinent factors.

In light of the required balancing of factors, the Fourth Circuit found that the district court did not err in considering Davis’ criminal history, the violent nature of the crime, and the significant reduction he had already received when deciding the extent of the reduction of his sentence. Accordingly, the Fourth Circuit affirmed the district court’s decision.

Full Opinion

-Michelle Theret

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