United States v. Davis, No. 12-4346

Decided: June 24, 2013

The Fourth Circuit vacated Zavier Marquis Davis’ consolidated sentence for multiple violations of North Carolina state law and remanded the case for resentencing holding that a consolidated sentence under North Carolina law is a single sentence for the purposes of the career offender enhancement under the U.S. Sentencing Guidelines.

In July 2004, Davis was arrested and indicted in state court for using a handgun to rob a Burger King in Charlotte, North Carolina.  In February 2005, he also used a gun to rob a McDonald’s in Charlotte and, a day prior to that robbery, used a gun to assault an individual and rob another.  Davis was indicted for the February 2005 robberies and charged with five counts of robbery with a dangerous weapon, among other offenses.  Davis pled guilty in state court to six counts of robbery with a dangerous weapon, one count for the 2004 robbery and five counts for the 2005 robberies.  Pursuant to a plea arrangement, the charges were consolidated for judgment as one and sentenced as a class D felony.  On July 31, 2010, Davis again used a handgun to rob a Wendy’s Restaurant in Charlotte.  In district court, Davis pled guilty to three counts:  Hobbs Act robbery; use of a firearm in furtherance of a violent crime; and possession of a firearm by a convicted felon.  A Presentence Investigation Report (“PSR”) indicated that Davis qualified for “career offender enhancement” under the U.S. Sentencing Guidelines because he was at least 18 years old when he committed the robbery and had two prior state robbery offenses.  A federal probation officer then recommended that the court sentence Davis as a career offender increasing the base offense level from twenty-six to thirty-two.  At the sentencing hearing, Davis objected to the career offender enhancement arguing that he had received a “consolidated sentence” for his prior state offenses and, therefore, he did not have “at least two prior felony convictions” as required by the Sentencing Guidelines.  The district court denied Davis’ objection and applied the enhancement and sentenced him to a within-Guidelines sentence of 276 months.  Davis appealed the sentence.

The Fourth Circuit indicated that the sole issue on appeal was “whether Davis’ prior state robbery offenses qualif[ied] as ‘two prior felony convictions’ as defined by the Guidelines.”  The Fourth Circuit first noted that, according to the Sentencing Guidelines, the “existence of two prior felony convictions alone is not dispositive; the defendant must also have at least two prior sentences for those convictions” that are counted separately.   The Fourth Circuit found that when the North Carolina court consolidated Davis’ 2004 and 2005 offenses, he received a single judgment and, consequently, he came before the federal court with just one consolidated sentence.  The Fourth Circuit also provided that there was no published authority on whether a North Carolina consolidated sentence is considered a single sentence or multiple sentences under the Sentencing Guidelines that would guide the court in disregarding the plaint meaning of the Sentencing Guidelines.  The Fourth Circuit rejected the Government’s contention that the court had already decided the issue by distinguishing the cases presented by the Government.  Instead, the court provided that the language of the Sentencing Guidelines is plain and requires that there be more than one prior sentence for the career offender enhancement to apply.  As a result, the Fourth Circuit held that “where a defendant receives a ‘consolidated sentence’ . . . under North Carolina law, it is one sentence and absent another qualifying sentence, the [career offender] enhancement is inapplicable.”

Full Opinion

– John G. Tamasitis

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