U.S. v. Davenport

• Decision Date: 21 April 2006
• Docket Number: No. 05-4304.,05-4304.
• Citation: 445 F.3d 366
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald DAVENPORT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 366

445 F.3d 366

UNITED STATES of America, Plaintiff-Appellee, v. Donald DAVENPORT, Defendant-Appellant.

No. 05-4304.

United States Court of Appeals, Fourth Circuit.

Argued January 31, 2006.

Decided April 21, 2006.

ARGUED:

Sean Paul Vitrano, Zuckerman Spaeder, L.L.P., Baltimore, Maryland, for Appellant. Andrew George Warrens Norman, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

ON BRIEF:

Gregg L. Bernstein, Zuckerman Spaeder, L.L.P., Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before WILKINS, Chief Judge, and MICHAEL and TRAXLER, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge WILKINS wrote the opinion, in which Judge MICHAEL and Judge TRAXLER joined.

OPINION

WILKINS, Chief Judge:

Donald Davenport appeals, as a violation of the Ex Post Facto Clause and as unreasonable, the ten-year sentence imposed by the district court following Davenport's guilty plea to fraudulent use of an access device, see 18 U.S.C.A. § 1029(a)(5) (West 2000). He also challenges, as plainly erroneous, the restitution order entered by the district court. For the reasons set forth below, we vacate the sentence and restitution order and remand for further proceedings.

I.

On May 17, 2004, Norma Brown reported to police that her wallet had been stolen by a man who jostled her as she boarded a shuttle bus at Baltimore-Washington International Airport. Shortly thereafter, one of Brown's credit cards was used at a store in the airport. Investigation of this purchase led to the arrest of Davenport, Anthony Dillon, and two others. Davenport subsequently pleaded guilty pursuant to a plea agreement.

The Probation Office filed a presentence report (PSR) that determined that Davenport's base offense level was 6, see United States Sentencing Guidelines Manual § 2B1.1(a)(2) (2004). The PSR then recommended 2-level enhancements for the amount of loss, see U.S.S.G. § 2B1.1(b)(1)(B), the number of victims, see U.S.S.G. § 2B1.1(b)(2)(A), theft from another person, see U.S.S.G. § 2B1.1(b)(3), and use of sophisticated means, see U.S.S.G. § 2B1.1(b)(9)(C). After subtracting two levels for acceptance of responsibility, see U.S.S.G. § 3E1.1(a), the PSR recommended an adjusted offense level of 12. Davenport had 26 criminal history points, placing him in Criminal History Category VI. The resulting advisory guideline range was 30-37 months.

In a letter submitted to the district court prior to sentencing, counsel for Davenport urged the district court to impose a sentence of only 24 months, arguing that such a sentence was justified by Davenport's cooperation with the Government and the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.2005). Counsel noted Davenport's "sincere remorse and shame for his conduct, which to a large extent appears to have been motivated by pressure from Mr. Davenport's childhood friend and accomplice, Anthony Dillon." J.A. 69. The Government contested this assertion at sentencing, arguing that

Mr. Davenport was heading . . . a nationwide pickpocket ring that would travel from event to event to event. Whether it was [the] Preakness [Stakes, the event Brown had attended,] or the Super Bowl or what have you and whether it be in the airports or at the events themselves, they would take pocketbooks, they would take wallets. They had all these devices to make I.D.s . . . . I just finished a two-month trial of I.D. theft and I can tell you it essentially ruins people's lives. It certainly ruins their credit . . . .

. . . .

Mr. Davenport was adamant in coaching Mr. Dillon . . . about not cooperating and don't tell the Government this, don't tell them that. As a matter of fact, . . . they had to move Mr. Davenport to a different facility because of that, separated from Mr. Dillon. He is in fact the leader. We've had proffers from at least three of the four defendants who have told us the entire story. . . . Mr. Davenport was in fact the ring leader and the organizer of this group. As far as . . . the nature and the circumstances of the crime, although to label it pick-pocketing seems minor, this was an extensive ring that involved fences, that involved vans that were set up at these events that would take the I.D.s and immediately go in and set up new I.D.s and false names and false identifications for other individuals as well.

Id. at 38-39. The Government concluded by recommending a sentence within the advisory guideline range, as was its obligation under the plea agreement.

The district court sentenced Davenport to ten years imprisonment, which it incorrectly believed to be the statutory maximum.¹ In imposing this sentence, the district court made the following comments:

[T]he presentence report shows that you have stolen a variety of things in a variety of places and you've also received a variety of breaks from a variety of judges. Listening to you this morning, I hear a less than vivid insight into your conduct and the reasons for that conduct. Understanding the guidelines to be advisory only now, this is a case where had the guidelines been binding, I would have departed upward above the guidelines. Understanding that the purposes of sentencing in this case which I view to be most important are to reflect the seriousness of the offense, I think a sentence that your lawyers have recommended not only would not show the seriousness of the offense, it would certainly not promote respect for the law. I think the characterization of you as essentially engaged in a national roving band of thieves is an appropriate one. Accordingly, I [sentence you] to serve a term of imprisonment of ten years . . . . The purpose of that sentence is . . . to provide deterren[ce]. I do believe that. . . you received a variety of breaks from a variety of judges in your past. None of that has had any therapeutic effect on you and as I listened . . . this morning to your self-assessment, I don't hear from you any awareness of the basis for your conduct or any serious commitment to changing that conduct.

Id. at 48-49. The district court also required Davenport to pay restitution.

II.

A.

Davenport first challenges his sentence as a violation of the Ex Post Facto Clause. See U.S. Const. art. I, § 9, cl. 3; see also id. art. 1, § 10, cl. 1 (prohibiting states from enacting ex post facto laws). This argument is without merit.

The Ex Post Facto Clause prohibits, inter alia, the enactment of "any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (internal quotation marks omitted). Accordingly, a law violates the Ex Post Facto Clause when it is retrospective — i.e., when it applies to events predating its enactment—and it disadvantages those to whom it applies. See Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). The central concern of the ex post facto prohibition is "the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Weaver, 450 U.S. at 30, 101 S.Ct. 960. The clause seeks to ensure "that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed," and it guards against "arbitrary and potentially vindictive legislation." Id. at 28-29, 101 S.Ct. 960.

Ex Post Facto challenges to the retroactive application of Booker have been universally rejected by the federal courts. See, e.g., United States v. Austin, 432 F.3d 598, 599-600 (5th Cir.2005) (per curiam); United States v. Vaughn, 430 F.3d 518 524-25 (2d Cir.2005), petition for cert. filed, No. 05-9499 (U.S. Mar. 1, 2006); United States v. Perez-Ruiz, 421 F.3d 11, 15 (1st Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1092, 163 L.Ed.2d 907 (2006); United States v. Dupas, 419 F.3d 916, 919-21 (9th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1484, ___ L.Ed.2d ___ (2006); United States v. Jamison, 416 F.3d 538, 539 (7th Cir.2005). We, likewise, reject Davenport's claim. When he committed the crime, Davenport was on notice that the maximum statutory penalty was 15 years; this is all that is required to satisfy the concerns of fair notice embodied by the Ex Post Facto Clause. See Austin, 432 F.3d at 599-600.

B.

Davenport next challenges his ten-year sentence as unreasonable. See United States v. Booker, 543 U.S. 220, 260-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Green, 436 F.3d 449, 456-57 (4th Cir.2006). For the reasons set forth below, we vacate and remand for resentencing.

1.

This court has previously described the necessary procedure for imposing sentence under the now-advisory sentencing guidelines:

First, the court must correctly determine, after making appropriate findings of fact, the applicable guideline range. Next, the court must determine whether a sentence within that range serves the factors set forth in § 3553(a) and, if not, select a sentence within statutory limits that does serve those factors. In doing so, the district court should first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law. . . . If an appropriate basis for departure exists, the district court may depart. If the resulting departure range still does not serve the factors set forth in § 3553(a), the court may then elect to impose a non-guideline sentence (a "variance sentence"). The district court must articulate the reasons for the sentence imposed, particularly explaining any departure or variance from the guideline range. The explanation of a variance sentence must be tied to the factors set forth in § 3553(a) and must be accompanied by findings of fact as necessary. The district court need not discuss each factor set forth...