766 Fed.Appx. 232 (6th Cir. 2019), 16-4732, United States v. Davison

Docket Nº:16-4732
Citation:766 Fed.Appx. 232
Opinion Judge:JOHN K. BUSH, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Andrew DAVISON, Defendant-Appellant.
Attorney:Daniel R. Ranke, Assistant U.S. Attorney, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff-Appellee Timothy F. Sweeney, Law Office, Cleveland, OH, for Defendant-Appellant
Judge Panel:Before: BOGGS, BATCHELDER, and BUSH, Circuit Judges.
Case Date:March 14, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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766 Fed.Appx. 232 (6th Cir. 2019)

UNITED STATES of America, Plaintiff-Appellee,

v.

Andrew DAVISON, Defendant-Appellant.

No. 16-4732

United States Court of Appeals, Sixth Circuit

March 14, 2019

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 6th Cir. Rule 32.1.

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[Copyrighted Material Omitted]

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ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

Daniel R. Ranke, Assistant U.S. Attorney, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff-Appellee

Timothy F. Sweeney, Law Office, Cleveland, OH, for Defendant-Appellant

Before: BOGGS, BATCHELDER, and BUSH, Circuit Judges.

OPINION

JOHN K. BUSH, Circuit Judge.

Appellant Andrew Davison asks us to reverse his sentence on the grounds that the district court improperly imposed a crime-of-violence enhancement under the United States Sentencing Guidelines. Davison’s sentence enhancement was based on a prior Ohio conviction for attempted felonious assault, which is no longer a crime of violence under a recent published opinion of our en banc court. See

United States v. Burris, 912 F.3d 386, 402, 406-07 (6th Cir. 2019) (en banc). We therefore reverse and remand for resentencing.

Davison also challenges the validity of a search warrant; the imposition of two other Guidelines enhancements (one for possessing a weapon in connection with drug trafficking and one for attempting to obstruct justice); the substantive reasonableness of his sentence; and the district court’s failure to order a competency hearing before allowing Davison to represent himself at trial. We affirm the district court as to all these other challenges.

I

The undisputed facts of this case are straightforward: local law-enforcement officers in Elyria, Ohio, executed six controlled

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drug purchases in which a confidential informant bought cocaine from Appellant Andrew Davison. One of the controlled buys occurred in the driveway of 197 Warden Avenue, and police observed Davison travel to or from 197 Warden before or after other controlled buys.

Elyria Police Detective Chris Constantino filed an affidavit describing in detail the six controlled buys and thereby secured a warrant to search 197 Warden for evidence of drug trafficking. In executing that warrant, police found a shotgun and a loaded handgun in the master bedroom; Davison, a convicted felon, later confessed to having purchased the guns. Davison was charged federally with being a felon in possession of a firearm and with possessing marijuana and cocaine with intent to distribute. The government voluntarily dismissed the drug charges. Davison proceeded to jury trial on the firearm charge, the jury found him guilty, and the district court sentenced Davison to the statutory maximum— 120 months of imprisonment.

II

We review de novo the district court’s determination that Davison’s prior Ohio conviction for attempted felonious assault was categorically a crime of violence under U.S.S.G. § 4B1.2(a). At the time of sentencing, United States v. Anderson was controlling precedent in our circuit and dictated such a determination. See United States v. Anderson, 695 F.3d 390, 402 (6th Cir. 2012). As a result, following Anderson, the district court determined Davison’s base offense level to be 20 (resulting in a Guidelines range of 110 to 120 months of imprisonment) rather than 14 (in which case Davison’s Guidelines range would have been 63 to 78 months of imprisonment). In Burris, however, the en banc court overturned Anderson and held that Ohio’s felonious-assault statute (under which Davison’s conviction for attempted felonious assault was secured) is not a crime of violence under the elements clause of U.S.S.G. § 4B1.2(a). See Burris, 912 F.3d at 402-03, 406-08. Burris compels reversal here.

The government argues that if Davison’s conviction is not a crime of violence under the elements clause, then it is categorically a crime of violence under the enumerated-offenses clause. That clause lists "aggravated assault" as a crime of violence. U.S.S.G. § 4B1.2(a)(2). But the enumerated-offenses clause contemplates only actual rather than attempted aggravated assault. On this basis alone, the enumerated-offenses clause does not apply. Furthermore, our en banc court held in Burris that "Ohio’s felonious-assault and aggravated-assault are ... too broad to categorically qualify as violent-felony predicates under the Guidelines enumerated-offenses clause." 912 F.3d at 400. Thus, we have definitively decided that the enumerated-offenses clause does not apply to Davison’s conviction. We therefore reverse and remand for resentencing.

III

We now turn to Davison’s remaining arguments: he challenges the validity of a search warrant; the imposition of two other Guidelines enhancements (one for possessing a weapon in connection with drug trafficking and one for attempting to obstruct justice); and the district court’s failure to order a competency hearing before allowing Davison to represent himself at trial. We address these issues in turn, and we affirm as to each.1

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A

We review de novo the district courts denial of Davisons motion to suppress evidence found during the execution of the search warrant at...

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