U.S. v. Davidson

• Decision Date: 18 May 2005
• Docket Number: No. 03-6549.,No. 03-6544.,03-6544.,03-6549.
• Citation: 409 F.3d 304
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Anthony DAVIDSON (03-6544); Debra Ann Davidson (03-6549), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

409 F.3d 304

UNITED STATES of America, Plaintiff-Appellee, v. Charles Anthony DAVIDSON (03-6544); Debra Ann Davidson (03-6549), Defendants-Appellants.

No. 03-6544.

No. 03-6549.

United States Court of Appeals, Sixth Circuit.

Argued: November 2, 2004.

Decided and Filed: May 18, 2005.

COPYRIGHT MATERIAL OMITTED

Michael Dean, Irvine, Kentucky, William G. Crabtree, London, Kentucky, for Appellants.

Charles P. Wisdom, Jr., Assistant United States Attorney, Lexington, Kentucky, for Appellee.

Before: MOORE and GIBBONS, Circuit Judges; EDMUNDS, District Judge.^*

MOORE, Judge, delivered the opinion of the court, in which EDMUNDS, District Judge, joined.

GIBBONS, Judge (p. 315), delivered a separate concurring opinion.

OPINION

MOORE, Circuit Judge.

These appeals concern the applicability of two subdivisions of the U.S. Sentencing Guidelines ("Guidelines").¹ Defendant-Appellant Debra Ann Davidson ("Mrs.Davidson") challenges the district court's decision to apply both the § 2D1.1(b)(1) firearm enhancement ("Firearm Enhancement") and the § 2D1.1(b)(5)(B) substantial-risk-of-harm-enhancement ("Substantial-Risk-of-Harm Enhancement"), while Defendant-Appellant Charles Anthony Davidson ("Mr.Davidson") challenges only the application of the Substantial-Risk-of-Harm Enhancement to his sentence. See U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G.") § 2D1.1(b)(1), 2D1.1(b)(5)(B). We conclude that, pursuant to United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court plainly erred in applying these enhancements, on the basis of judge-found facts, as part of the (formerly mandatory) Guidelines sentencing system. Moreover, we conclude that the Substantial-Risk-of-Harm Enhancement cannot properly be applied, on the facts of this case, for purposes of determining the recommended Guidelines sentence. Accordingly, we VACATE the sentences of both Mr. and Mrs. Davidson and REMAND the cases to the district court for further proceedings consistent with this opinion and with the Supreme Court's decision in Booker.

I. BACKGROUND

On January 28, 2003, federal agents accompanied by state and municipal police officers executed a search warrant on the residence of Mr. and Mrs. Davidson. The search warrant authorized the officers to search for a fugitive by the name of Mr. Mooneyham and to search the couple's residence for documents that might link Mooneyham to the Davidsons. Although they did not find Mooneyham, the officers found a Ford Expedition connected to Mooneyham, as well as a motor home containing a number of Mr. Mooneyham's personal effects. More importantly for this case, the officers made several discoveries suggestive of illegal activity, including: a working methamphetamine laboratory in the loft of the Davidsons' barn; a marijuana-growing operation in the crawlspace of a workshop located next to the barn; numerous unlabeled pill bottles; several baggies of an unidentified powder; additional marijuana; and numerous vehicles with the Vehicle Identification Number ("VIN") altered or obscured, or with improper registrations.

A federal grand jury indicted Mr. and Mrs. Davidson on multiple counts relating to drug manufacture, drug possession, and possession of stolen vehicles. The Davidsons moved to suppress the evidence seized by the officers during their search of the Davidsons' property, and the district court granted this motion in part.² Four days before the scheduled trial date, and approximately two months after the district judge's ruling on their joint suppression motion, both Mr. and Mrs. Davidson accepted plea offers from the government. The nearly identical plea agreements provided that both Mr. and Mrs. Davidson would plead guilty to Counts One (attempting to manufacture methamphetamine) and Six (possession of a stolen 1988 Chevrolet pickup truck which had traveled in interstate commerce). In return, the government agreed to move to dismiss the remaining counts and to make certain sentencing recommendations and a factual stipulation.³

The probation office recommended that Mrs. Davidson be sentenced at Total Offense Level 30, Criminal History Category I, for a guideline range of 97 to 121 months' imprisonment, followed by 4 to 5 years of supervised release. This recommendation based on the count with a higher Adjusted Offense Level (Count One), began with a Base Offense Level of 30 due to the marijuana equivalency of the substances involved. The probation office applied the two-level Firearm Enhancement and the three-level Substantial-Risk-of-Harm Enhancement, but subtracted two levels for Mrs. Davidson's minor role in the offense under U.S.S.G. § 3B1.2(b). To this Adjusted Offense Level of 33, the probation office applied a three-level downward adjustment for acceptance of responsibility, resulting in a Total Offense Level of 30.

In regard to Mr. Davidson, the probation office recommended that he be sentenced at Total Offense Level 32, Criminal History Category I, for a guideline range of 121 to 151 months' imprisonment, followed by 4 to 5 years of supervised release. As with Mrs. Davidson, Mr. Davidson was found to have a Base Offense Level of 30 due to the marijuana equivalency of the substances involved in Count One. The probation office applied the two-level Firearm Enhancement and the three-level Substantial-Risk-of-Harm Enhancement. Unlike the case of Mrs. Davidson, however, the probation office did not apply any adjustment for Mr. Davidson's role in the offense under § 3B1.2. This left Mr. Davidson with an Adjusted Offense Level of 35. The probation office then applied a three-level downward adjustment for acceptance of responsibility, resulting in a Total Offense Level of 32.

Over the objections of both defendants, the district court sentenced Mr. and Mrs. Davidson according to the probation office's recommendations. The district court found, as a preliminary matter, that the Davidsons' plea agreements were not entered under Federal Rule of Criminal Procedure 11(c)(1)(C), the rule binding the district court to a recommendation once it accepts the plea agreement. Although the district judge did not state the applicable provision explicitly, this was in effect a finding that the portions of the plea agreements addressing the Firearm Enhancement must have been entered under Federal Rule of Criminal Procedure 11(c)(1)(B), the rule providing for plea agreements that do not bind the district court. The district court then overruled the Davidsons' objections to the application of the Firearm Enhancement and the Substantial-Risk-of-Harm Enhancement, but did not separately address the government's recommendation in the plea agreement that the Firearm Enhancement not be applied to Mrs. Davidson. The district court found that it was appropriate to allow Mrs. Davidson a minor role adjustment under § 3B1.2(b), but that this adjustment did not prevent the application of the Substantial-Risk-of-Harm Enhancement to her sentence.⁴ On the basis of these findings, the district court sentenced Mrs. Davidson to 97 months of imprisonment followed by 4 years of supervised release, and Mr. Davidson to 121 months of imprisonment followed by 4 years of supervised release. Both Mr. Davidson and Mrs. Davidson were sentenced to the minimum terms of imprisonment possible under the district court's Guidelines calculations.

Both Mr. and Mrs. Davidson appeal the district court's decision to apply the Substantial-Risk-of-Harm Enhancement. Mrs. Davidson also appeals district court's characterization of the portion of her plea agreement addressing the Firearm Enhancement as having been entered pursuant to Rule 11(c)(1)(B), rather than Rule 11(c)(1)(C). On July 22, 2004, we granted the Davidsons' request to allow supplemental briefing in response to the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). However, before supplemental briefs were filed, we granted the government's request to continue supplemental briefing pending our decision in United States v. Koch, 383 F.3d 436 (6th Cir.2004) (en banc), overruled by Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621.

II. ANALYSIS

A. Jurisdiction

The district court had jurisdiction under 18 U.S.C. § 3231 because both Mr. and Mrs. Davidson were charged with violations of federal criminal law. As both defendants timely appealed a final judgment of the district court, we have jurisdiction pursuant to 28 U.S.C. § 1291.

B. Sixth Amendment Claims

In Booker, the Supreme Court concluded that the Sixth Amendment prevents federal judges from making factual determinations that increase a defendant's sentence on the basis of facts not reflected in the jury's verdict. Booker, 125 S.Ct. at 745-47, 756. The Court went on to conclude that this constitutional holding required the invalidation of 18 U.S.C. §§ 3553(b)(1) and 3742(e), "mak[ing] the Guidelines effectively advisory." Id. at 757.

Although the Davidsons did not raise Sixth Amendment claims in district court, we have previously held that sentences imposed on the basis of unconstitutional judicial fact-finding satisfy the plain-error test. See generally United States v. Oliver, 397 F.3d 369, 380-81 (6th Cir.2005). In this case, absent the judicial findings that Mrs. Davidson possessed a firearm in connection with the attempt to manufacture methamphetamine, and that the attempt to manufacture methamphetamine created a substantial risk of harm to human life or the environment, Mrs. Davidson's sentencing range would have been substantially lower. Her Total Offense Level would have been 25, rather than 30, resulting in a sentencing range of 57-71 months, rather than 97-121 months.⁵ By imposing a sentence of 97 months, the district court sentenced Mrs. Davidson to an additional 26 months of imprisonment beyond the 71 months authorized by the plea agreement alone. Similarly, absent the judicial findings that Mr. Davidson possessed a firearm in connection...