United States v. Davis

• Decision Date: 09 May 2012
• Docket Number: No. 11–4495.,11–4495.
• Citation: 679 F.3d 177
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Eric Ricardo DAVIS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

679 F.3d 177

UNITED STATES of America, Plaintiff–Appellee,

v.Eric Ricardo DAVIS, Defendant–Appellant.

No. 11–4495.

United States Court of Appeals, Fourth Circuit.

Argued: March 23, 2012.

Decided: May 9, 2012.

ARGUED:James Edward Todd, Jr., Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Kristine L. Fritz, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before DAVIS and DIAZ, Circuit Judges, and JACKSON L. KISER, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge DAVIS wrote the majority opinion, in which Judge DIAZ joined. Senior Judge KISER wrote a dissenting opinion.

OPINION

DAVIS, Circuit Judge:

Appellant Eric Ricardo Davis pled guilty to possession of ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). Davis had entered a “no-contest” plea to a robbery charge in a prior, related prosecution in state court. The pre-sentence investigation report (“PSR”) prepared in the instant case determined that a cross-reference to the robbery advisory sentencing guideline was appropriate. After an evidentiary hearing at sentencing, the district court overruled Davis's timely objection, applied the robbery guideline, and imposed a sentence of 106 months' imprisonment. On appeal, Davis contends that the district court committed procedural sentencing error because insufficient evidence supported the cross-reference to the robbery guideline.

We conclude that, although the Government may have presented sufficient evidence to support the cross-reference to the robbery guideline, the district court failed to resolve critical disputed issues of fact necessary to its application of the Advisory Sentencing Guidelines and our appellate review thereof. Accordingly, we vacate the judgment and remand the case for further proceedings.

I.

A.

The state and federal charges against Davis at issue in this appeal arose out of a shooting that occurred in 2010. At the time of the shooting, Davis was a twenty year-old member of the Valentine Day Bloods (a subset of the United Blood Nation). On February 11, 2010, Davis and another man approached seventeen year-old Octavious Wilkins as he walked near a high school in Rocky Mount, North Carolina. Davis believed that Wilkins was involved in an incident two days earlier in which Davis had been shot in the leg.

At the time Davis and his companion approached Wilkins, Wilkins was talking on a cellular telephone he was carrying. A confrontation ensued, during which Davis and his companion brandished weapons at Wilkins. Ultimately, they discharged their firearms as Wilkins fled from them. Two rounds struck Wilkins in the left leg. In the course of this incident, Davis either took Wilkins's cell phone directly from him while threatening him with a .45 caliber handgun, or he retrieved the cell phone from the ground after Wilkins dropped it while fleeing. Crucial to the application of the Advisory Sentencing Guidelines is the manner in which Davis came to possess Wilkins's cell phone.

Soon after the shooting, local police arrested Davis. He was found to have in his possession a round of .45 caliber ammunition (matching shell casings at the scene of Wilkins's shooting) and Wilkins's cell phone.

B.

The day after the shooting, February 12, 2010, Davis was charged with two state offenses for his role in the incident: common law robbery and possession of a firearm by a felon. Before his plea hearing for these state offenses, Davis was also indicted in the instant case in the Eastern District of North Carolina on one count of possession of ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1).

On September 22, 2010, in state court, Davis pled “no contest” to common law robbery and prohibited possession of a firearm. He was sentenced to fourteen to seventeen months' imprisonment. Thereafter, Davis appeared in federal court and, without a plea agreement, entered a guilty plea to the possession of ammunition offense.

A PSR was prepared by a probation officer for Davis's federal sentencing. In computing the advisory sentencing guideline range for the possession of ammunition charge, the PSR first noted the applicability of U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2K2.1(c)(1)(A), because Davis's possession of ammunition was “in connection with the commission of another offense.” ¹ Pursuant to this provision, the PSR determined that Davis had indeed committed “another offense,” i.e., robbery, U.S.S.G. § 2B3.1, which prescribes a base offense level of 20. The PSR then added seven offense levels for the discharge of a firearm, four levels for serious bodily injury to the victim, and two levels for physical restraint of a person to facilitate commission of the offense, summing to a base offense level of thirty-three. A three-level reduction was recommended for acceptance of responsibility, resulting in a total offense level of thirty. With Davis's criminal history category III, the final guidelines range was calculated at 121 to 151 months. The PSR noted, however, that Davis's § 922(g)(1) offense has a statutory maximum imprisonment term of 120 months. The guidelines range was therefore ultimately determined to be ten years, the statutory maximum.

Davis timely objected to the PSR's cross-reference to robbery. In response, the probation officer recounted the factual premise for her decision:

[T]he investigation revealed that Davis and another individual approached the victim, brandished a gun, and stole the victim's cellular phone. Davis and the other individual forced the victim to walk with them a short distance with the gun placed to his back. When the victim began to run, Davis shot toward the victim, hitting him twice in the leg. When questioned by authorities, Davis admitted he took the victim's cell phone and shot toward the victim when he fled. Moreover, the victim's cell phone was found on Davis' person. Furthermore, on September 22, 2010, Davis was convicted of state charges of Common Law Robbery and Possession of a Firearm by a Felon for conduct related to the instant offense.

J.A. 77. Thus, the probation officer concluded that no change was warranted and the PSR was submitted to the court.

During Davis's sentencing hearing, Davis elaborated on his objection to the robbery cross-reference, asserting through counsel (and consistent with his “no contest” plea, see infra) “he did not rob Mr. Wilkins on the date in question.” J.A. 33. Davis argued that the appropriate cross-referenced offense should be aggravated assault (“because what happened here was an assault,” id.), which carries a base offense level of fourteen. SeeU.S.S.G. § 2A2.2. With the PSR's other adjustments applied to that base level, Davis argued, the appropriate final offense level should be twenty-four and his proper advisory guidelines sentencing range should be forty-six to fifty-seven months rather than 120 months.

The Government argued that the cross-reference to robbery was appropriate and called FBI Agent John Spears to testify in support of its contention. Spears had “summarized a compilation of reports” concerning the incident but was not present for any of the interviews. J.A. 40.

Spears's testimony at sentencing was conflicting. As recounted by Spears, at the hospital shortly after he was shot, Wilkins gave a statement to a local police officer in which he indicated that he ran as his assailants approached, that his assailants “never said anything before or after the shooting,” and that “his cell phone got taken from him by the people with the guns.” J.A. 42, 36. A second local officer interviewed Wilkins the next day and recorded Wilkins as saying that “he dropped his cell phone while running away from whoever was shooting at him.” J.A. 43. During this second interview, Wilkins also claimed that his assailants “walked up behind him, pointed a gun in his back and told him to walk with them.” J.A. 44.

Adding to this muddled account, Agent Spears also testified that in Miranda—compliant interviews after the incident, Davis himself stated that he “approached [Wilkins] and he took his cell phone and ended up shooting him.” J.A. 37. Specifically, when asked to “summarize what [Davis] told detectives” after his arrest, Spears replied:

[H]e told the detectives that several days prior to this shooting that occurred on the 11th, that he had been shot himselfby an unidentified black male with a shotgun with birdshot.

Earlier that day, prior to him actually shooting Octavious Wilkins, he was told that the guy who shot him two days earlier was in the vicinity of the high school.

Eric Davis and other individuals responded to the area and began looking for him. They saw—Eric Davis saw Octavious Wilkins, thought that that was the individual that had shot him two days earlier, and at that point that's when he approached him and he took his cell phone and ended up shooting him.

Id.

On cross-examination, Agent Spears confirmed that no jewelry was taken from Wilkins during the incident, nor was the nearly $50 in cash he had at the time taken, thus bolstering the defense assertion that robbery was not Davis's motivation or purpose in confronting Wilkins. The Government then confirmed, on re-direct, that neither Wilkins nor the owner of the cell phone, his girlfriend, had given Davis the phone “willingly.” J.A. 44.

In argument, counsel for Davis asserted that based on the evidence before the court, “the clear inference is that Wilkins dropped the cell phone while running away” and that Davis had “picked it up but...