Davis v. United States

• Decision Date: 15 March 2016
• Docket Number: No. 14–3019.,14–3019.
• Citation: 817 F.3d 319
• Parties: Calvin DAVIS, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

817 F.3d 319

Calvin DAVIS, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 14–3019.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 4, 2016.

Decided March 15, 2016.

George E. Mastoris, Attorney, Brandon W. Duke, Attorney, Winston & Strawn LLP, Houston, TX, for Petitioner–Appellant.

Stuart D. Fullerton, Attorney, Office of the United States Attorney, Chicago, IL, for Respondent–Appellee.

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER

, Circuit Judge.

Calvin Davis pleaded guilty in 2010 to a narcotics conspiracy charge pursuant to a written plea agreement providing that he would be sentenced to a term equal to 66 percent of either the low end of the sentencing range advised by the Sentencing Guidelines or the statutory minimum term, whichever was greater. See Fed.R.Crim.P. 11(c)(1)(C)

. Davis expected to receive a prison term of no more than 80 months. However, the Guidelines range as subsequently calculated by the probation officer and adopted by the district court turned out to be much longer than the parties had expected it would be. The court ultimately ordered Davis to serve 172 months in prison, a term that was equal to 66 percent of the low end of the Guidelines range and therefore consistent with the plea agreement, but more than twice what the parties had anticipated when they entered into that agreement. No appeal was filed from the sentence. But more than four years later, following the Supreme Court's decision in Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), Davis filed a motion under 28 U.S.C. § 2255 contending that he was entitled to relief because the judge's sentencing findings regarding his criminal history had increased the statutory minimum term of imprisonment. He also asserted, among other claims, that his attorney was ineffective in advising him about the consequences of his plea (including the likely sentence) and in failing to file a notice of appeal following his sentencing. The district court dismissed the motion, reasoning that Davis had no viable claim under Alleyne given that the Supreme Court has not yet declared that decision applicable retroactively on collateral review, and that Davis's other claims were untimely. We agree and affirm the district court's judgment.

I.

In 2008, Davis became involved with a Rockford, Illinois drug ring led by Hollis Daniels that trafficked primarily in heroin and occasionally crack cocaine. See United States v. Block, 705 F.3d 755, 758 (7th Cir.2013)

(describing the organization). His duties included picking up heroin from a supplier in Chicago, dropping off the raw heroin to other conspirators for dilution and packaging, supplying street-level dealers with 25–count retail packages of heroin, and collecting the proceeds of their sales. The organization distributed approximately 700 grams of heroin per week. Davis was stopped and arrested while on his way to complete a pre-arranged delivery of heroin to someone who was, unbeknownst to him, a confidential informant; he had 80 grams of heroin in his possession. After he was charged in Illinois state court, he began to cooperate with federal and state agents investigating the Hollis organization, became a confidential informant, and over the course of the next year wore a recording device to capture other members of the organization discussing their illegal activities. The investigation culminated in a second superseding indictment charging Davis and 14 others with conspiring to distribute (and to possess with the intent to distribute) more than one kilogram of heroin and 50 grams of crack cocaine, among other offenses. See 21 U.S.C. §§ 841(a)(1), 846.

Davis pleaded guilty to the conspiracy charge pursuant to a written plea agreement. Davis agreed to continue cooperating with the government and to provide truthful testimony in any subsequent proceeding. In exchange for his assistance, the government agreed to ask the court to depart downward from either the applicable statutory minimum term of imprisonment or the low end of the advisory range specified by the Sentencing Guidelines, whichever was higher, and to impose a sentence equal to 66 percent of that term. See 18 U.S.C. § 3553(e)

; U.S.S.G. § 5K1.1. Because the drug conspiracy involved more than one kilogram of heroin, Davis was presumptively subject to a statutory minimum sentence of 10 years. See 21 U.S.C. § 841(b)(1)(A)(i). The agreement expressly acknowledged that minimum term as well as the maximum possible term of life imprisonment. See R. 300 at 4 ¶ 8a & 7 ¶ 10d.¹ However, given what the attorneys knew about Davis's criminal history, both parties anticipated that Davis would have only one criminal history point (resulting in a criminal history of I) and that he would consequently be eligible for a sentence below the statutory minimum. See 18 U.S.C. § 3553(f) ; U.S.S.G. § 5C1.2(a)(1). Based on their preliminary Guidelines calculations, the parties also anticipated that the advisory Guidelines range would be 108 to 135 months. In accordance with the Government's agreement to seek a downward departure to 66 percent of either the low end of that range (i.e., approximately 71 months) or of the statutory 10–year minimum (roughly 79 months), whichever was greater, the parties expected the recommended sentence to be no more than 80 months. This was a Rule 11(c)(1)(C) agreement, so provided that the government found Davis's cooperation to be sufficient and made the departure motion, the district court, having accepted the agreement, was obliged to sentence Davis to 66% of either the Guidelines minimum or statutory minimum term.

The agreement recognized in several ways, however, that the parties' Guidelines calculations were preliminary and that both the Guidelines range and the final sentence might ultimately turn out to be different than the parties assumed at the time they entered into the agreement. Thus, in recounting the parties' calculations as to Davis's criminal history and the anticipated Guidelines range, for example, the agreement noted that the calculations were "based on the facts now known to the government." R. 300 at 6 ¶ 10(c) & (d). More to the point, the agreement expressly recognized that the parties' Guidelines calculations were tentative, that the calculations might change following the probation officer's investigation, and that any such changes would not constitute a basis for a withdrawal of Davis's guilty plea:

Defendant and his attorney and the government acknowledge that the above Guideline calculations are preliminary in nature, and are non-binding predictions upon which neither party is entitled to rely. Defendant understands that further review of the facts or applicable legal principles may lead the government to conclude that different or additional Guideline provisions apply in this case. Defendant understands that the Probation Office will conduct its own investigation and that the Court ultimately determines the facts and law relevant to sentencing, and that the Court's determinations govern the final Guideline calculation. Accordingly, the validity of this Agreement is not contingent upon the probation officer's or the Court's concurrence with the above calculations, and defendant shall not have a right to withdraw his plea on the basis of the Court's rejection of these calculations.

R. 300 at 7 ¶ 10e. The agreement similarly acknowledged that any errors in correcting or interpreting the Guidelines could be corrected by either party prior to sentencing, and again stated that "[t]he validity of this Plea Agreement will not be affected by such corrections, and defendant shall not have a right to withdraw his plea, nor the government the right to vacate this Plea Agreement, on the basis of such corrections." R. 300 at 7 ¶ 10f. Finally, the agreement acknowledged that no threats, promises or representations had been made nor agreements reached, other than those set forth in the plea agreement itself, to cause Davis to plead guilty. R. 300 at 16 ¶ 28. In signing the agreement, Davis acknowledged that he had read, understood, and accepted its terms. R. 300 at 17 ¶ 29.

As it turned out, the probation officer's presentence investigation and report produced Guidelines calculations that were much less favorable to Davis than those set forth in the plea agreement. Davis previously had served in the United States Army, and after receiving his military records, the probation officer learned that Davis had, contrary to his representation to her, been discharged from the Army on other than honorable terms² and had a disciplinary record that included convictions at a general court martial (pursuant to his guilty plea) for the military offenses of fraudulent enlistment, bigamy, attempted bigamy, and adultery and a 30–month term of confinement for those offenses. That record increased the number of points in Davis's criminal history, disqualifying him for a sentence below the 10–year statutory minimum, and placed him into a criminal history category of III. Furthermore, because Davis had, in the probation officer's view, misrepresented the circumstances of his military discharge and his disciplinary history,³ the presentence report recommended that his offense level be increased by two levels pursuant to section 3C1.1 for obstruction of justice.⁴ Yet another unanticipated two-level increase was proposed for the firearms that had been possessed by Davis's co-conspirators. See U.S.S.G. § 2D1.1(b)(1)

.⁵ The various changes resulted in a Guidelines sentencing range of 262 to 327 months.

When Davis was sentenced on October 13, 2010, the district court adopted the Guidelines calculations set forth in the presentence report. Judge Kapala acknowledged that the resulting sentencing range was higher than the parties had anticipated in the plea agreement, but attributed the bulk of the difference to the fact that "the attorneys did not anticipate that [Davis] would lie to...