United States v. Davis, No. 11-4495

Decided: May 9, 2012

Eric Ricardo Davis appealed his sentence for possession of ammunition by a felon, contending that the district court committed procedural sentencing error by cross referencing his sentence with the robbery guidelines.

The charges against Davis arose out of an incident where he and another man approached Octavious Wilkins, a man they believed was involved in an incident two days prior where Davis was shot in the leg.  At the time Davis and his companion approached Wilkins, he was speaking on a cell phone.  A confrontation ensued and Wilkins was struck by two rounds in his leg while fleeing from Davis.  At some point, Davis either took Wilkin’s cell phone directly from him or dropped it while fleeing.

The day after the shooting, Davis was charged with two state offenses: common law robbery and possession of a firearm by a felon, pleading “no contest” to both and being sentenced to fourteen to seventeen months’ imprisonment.  He was also indicted on one federal charge of possession of ammunition by a felon, entering a guilty plea.  The pre-sentence investigation report (PSR) prepared by a probation officer for Davis’ federal sentencing noted the applicability of US Sentencing Guidelines Manual (USSG) § 2K2.1(c)(1)(A), allowing cross referencing, because Davis’ possession of ammunition was in connection with the state law offense of common law robbery.  The final guidelines range was calculated at 121 to 151 months, although since Davis’ possession of ammunition offense has a statutory maximum imprisonment term of 120 months, the range was ultimately determined to be 10 years, the statutory maximum.

Davis objected to the PSR’s cross-reference to robbery.  In responding, the probation officer recounted the fact that Davis had taken the victim’s cell phone and it was found on his person at the time of his arrest.  During Davis’ sentencing hearing, he asserted through counsel that he did not rob Mr. Wilkins and that the appropriate cross-referenced offense should be aggravated assault.  The district court overruled Davis’ objection, adopting the sentence laid our in the PSR. On appeal, the Fourth Circuit reviews a sentence imposed by a district court under a deferential abuse of discretion standard.  Factual findings are reviewed for clear error, legal conclusions de novo, and a sentence based on an improperly calculated guidelines range will be found unreasonable and vacated.  The Government has the burden to prove a cross referenced offense by a preponderance of the evidence.

While the North Carolina robbery statute emphasizes the elements of inducement and specific intent as crucial to a robbery offense, North Carolina appellate courts have recognized that inducement can be established even in the absence of a premeditated intention if a theft is perpetrated within a continuous chain of evens that involves the used of force.  Fact finding has also been noted as important in these cases, and is especially salient for Davis where there are two plausible scenarios in the record by which Davis may have acquired Wilkins’ phone.  The district court did not make a finding that indicated clearly how it resolved the parties’ dispute.  Instead, the district court made comments that strongly indicate that it made the determination Davis had committed “another offense” under the USSG as a matter of law rather than as a matter of fact, focusing on evidence of a conviction rather than evidence of conduct.  An enhanced sentence may not rest on a conviction based on a plea unless the defendant’s own admissions or accepted findings of fact confirm the factual basis of a valid plea.  In North Carolina, a defendant who pleads no contest does not admit any facts alleged in the charging document.

The majority held that Davis’ no contest plea to common law robbery could not alone provide the necessary evidentiary basis to support application of the robbery cross-reference under the circumstances.  Concluding that the district court failed to resolve critical disputed issues of fact necessary to its application of the Advisory Sentencing Guidelines, the Fourth Circuit vacated the judgment and remanded the case for fact finding regarding Davis’ conduct.  Judge Kiser dissented, believing that the district court did make the necessary findings to support cross-referencing to the robbery guidelines based on the facts set forth by the probation officer.  Furthermore, he stated the applicable standard of review required the Fourth Circuit to view the evidence in the light most favorable to the district court’s determination.

Full Opinion

-Nora Bennani

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