U.S. v. Davis

• Decision Date: 08 October 2009
• Docket Number: No. 08-3254.,08-3254.
• Citation: 583 F.3d 1081
• Parties: UNITED STATES of America, Appellee, v. Mack Arthur DAVIS, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

583 F.3d 1081

UNITED STATES of America, Appellee, v. Mack Arthur DAVIS, Jr., Appellant.

No. 08-3254.

United States Court of Appeals, Eighth Circuit.

Submitted May 14, 2009.

Filed October 8, 2009.

Mark C. Meyer, argued, Cedar Rapids, IA, for appellant.

Mark Tremmel, AUSA, argued, Sioux City, IA, for appellee.

Before RILEY, SMITH, and COLLOTON, Circuit Judges.

RILEY, Circuit Judge.

Mack Arthur Davis, Jr. (Davis) appeals his conviction and the sentence he received after he pled guilty to distributing crack cocaine. The district court¹ denied Davis's motion to withdraw his guilty plea, found Davis was a career offender who obstructed justice and played a managerial or supervisory role in the distribution of crack cocaine, and sentenced Davis to 293 months imprisonment. We affirm.

I. BACKGROUND

Davis was arrested on June 28, 2006, after he sold crack cocaine to a confidential informant on June 20, 22, and 28, 2006, in Cedar Rapids, Iowa. On all three occasions, Amanda Shryers (Shryers) drove Davis to the location of the sales. Shryers was also arrested. Davis agreed to cooperate with law enforcement, and made fourteen controlled purchases. In late August 2006, law enforcement officers lost contact with Davis, and later learned Davis had fled to Memphis, Tennessee. The State of Iowa issued several warrants for Davis's arrest. In June 2007, Davis, in his absence, was indicted on three counts of distributing crack cocaine. In August 2007, Davis was arrested in Memphis. Davis denied his identity until a Cedar Rapids police officer flew to Memphis to testify at an identity hearing requested by Davis.

On January 9, 2008, a grand jury returned a three-count superseding indictment against Davis. Counts 1 and 2 charged Davis with distributing crack cocaine, in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(C), and Count 3 charged Davis with distributing crack cocaine within 1,000 feet of an elementary school, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860. The government provided notice pursuant to 21 U.S.C. § 851 that the government intended to rely on Davis's prior felony convictions to subject Davis to career offender status.

At a hearing on January 28, 2008, Davis's attorney inquired whether the district court intended to set a deadline by which Davis would need to plead guilty in order to receive a reduction for acceptance of responsibility. In an order dated February 1, 2008, the district court informed Davis his "deadline for receiving the additional one-level decrease for acceptance of responsibility" under U.S.S.G. § 3E1.1(b) was February 4, 2008.

On February 6, 2008, Davis appeared before Magistrate Judge Jon S. Scoles (magistrate) and entered a guilty plea to the lesser included offense in Count 3 of distributing crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851. Davis's plea agreement with the government was a cooperating plea agreement. The government dismissed the remaining counts. The district court accepted Davis's guilty plea on February 21, 2008.

On March 11, 2008, Davis filed a motion to withdraw his guilty plea. The magistrate held a hearing on Davis's motion on March 31, 2008, at which time it became apparent Davis's attorney would be required to testify. Thus, Davis's attorney withdrew, and a new attorney was appointed to represent Davis. Following a second hearing on the motion, the magistrate issued a report and recommendation, recommending the district court deny Davis's motion to withdraw his guilty plea. The district court adopted the report and recommendation and denied Davis's motion.

A United States Probation Officer prepared a presentence investigation report (PSR) for Davis, calculating a base offense level of 30. The PSR recommended a two-level increase for Davis's role in the drug transactions, pursuant to U.S.S.G. § 3B1.1(c), and an additional two-level increase for obstruction of justice, pursuant to U.S.S.G. § 3C1.1. The PSR did not recommend a reduction for acceptance of responsibility. The PSR suggested Davis qualified as a career offender under U.S.S.G. § 4B1.1 because Davis had one prior felony for a controlled substance offense and another prior felony that constituted a crime of violence, indecent contact with a child. The PSR's calculations resulted in a total offense level of 34, a criminal history category of VI, and an advisory Guidelines range of 262 to 327 months.

Davis was sentenced on September 17, 2008. After hearing arguments from counsel, the district court found the government proved by a preponderance of the evidence that Davis was an organizer, leader, manager, or supervisor in the drug transactions, and the district court imposed a two-level role enhancement. The district court also found the government proved by a preponderance of the evidence that Davis obstructed justice, and the district court increased Davis's offense level by two additional levels. The district court then decided by a preponderance of the evidence that Davis failed to demonstrate his entitlement to a reduction for acceptance of responsibility, giving Davis an adjusted offense level of 34.

Next, the district court determined Davis had two predicate offenses which qualified him as a career offender. While Davis's career offender status did not increase his offense level, Davis's criminal history category increased to category VI. Based upon these calculations, Davis's advisory Guidelines range was 262 to 327 months. The government informed the district court it would not be making a U.S.S.G. § 5K1.1 motion for a downward departure based on substantial assistance. After considering the 18 U.S.C. § 3553(a) factors, the district court sentenced Davis to 293 months imprisonment and 6 years supervised release. After the sentencing hearing, the district court issued a sentencing memorandum, explaining the district court's rationale for finding Davis was a career offender.

Davis appeals his conviction and sentence on various grounds. Davis contends the district court erred by (1) denying Davis's motion to withdraw his guilty plea; (2) finding Davis was a career offender; (3) basing the sentence on contested and unproven allegations in the PSR; (4) finding Davis was an organizer, leader, manager, or supervisor in the drug distribution; (5) finding Davis obstructed justice; and (6) imposing an unreasonable sentence. Davis also claims the government improperly refused to make a U.S.S.G. § 5K1.1 motion for a downward departure based on Davis's substantial assistance.

II. DISCUSSION

A. Motion to Withdraw Guilty Plea

Davis asserts the district court erred when it denied Davis's motion to withdraw his guilty plea. A district court's denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Mugan, 441 F.3d 622, 630 (8th Cir.2006) (citing United States v. Payton, 168 F.3d 1103, 1105 (8th Cir.1999)). "A guilty plea is a solemn act not to be set aside lightly." United States v. Prior, 107 F.3d 654, 657 (8th Cir.1997) (citation omitted). Under Fed.R.Crim.P. 11(d)(2)(B), a guilty plea may be withdrawn before sentencing if "the defendant can show a fair and just reason for requesting the withdrawal." The district court may also "consider whether the defendant asserts his legal innocence to the charge, the length of time between the guilty plea and the motion to withdraw, and whether the withdrawal would prejudice the government." United States v. Teeter, 561 F.3d 768, 770 (8th Cir.2009) (citing United States v. Austin, 413 F.3d 856, 857 (8th Cir.2005)). "`Post-plea regrets by a defendant caused by contemplation of the prison term he faces are not a fair and just reason for a district court to allow a defendant to withdraw a guilty plea, or for this court to reverse the district court.'" Teeter, 561 F.3d at 770-71 (quoting United States v. Stuttley, 103 F.3d 684, 686 (8th Cir.1996)).

In the motion to withdraw his guilty plea, Davis contended he misunderstood the plea agreement and the operation of U.S.S.G. § 3E1.1(b), and his "guilty plea was not knowingly, intelligently, and voluntarily entered." Davis testified he did not understand at the time he entered his guilty plea that the government had to file a motion in order for Davis to receive the additional one-level decrease for acceptance of responsibility. Davis declared he would not have pled guilty if he had known he was not guaranteed a three-level decrease by pleading guilty before the district court's deadline. Davis also contended he did not understand that if the district court found Davis obstructed justice, it was unlikely Davis would receive an acceptance of responsibility reduction. Davis suggested he only had time to "skim[] through" the plea agreement because it was a "rush job."

At the hearing, Davis also testified about the discussions he had with his attorney when deciding whether to plead guilty, and Davis shared with the court the advice Davis's attorney gave Davis. Due to Davis's disclosures, the government announced its intention to call Davis's attorney as a witness, and Davis's attorney moved to withdraw as Davis's counsel.

A second hearing was held on Davis's motion to withdraw his guilty plea after new counsel was appointed to represent Davis and the parties submitted briefs on the issue of attorney-client privilege. Because Davis asserted his former attorney had given Davis erroneous advice about the consequences of a guilty plea, and because Davis offered testimony about their conversations at the first hearing, the magistrate ruled the government could question Davis's former attorney both about what Davis's attorney told Davis and what Davis said to his attorney. Davis's former attorney then testified about his conversations with Davis. The magistrate issued a report and recommendation, recommending the district court deny Davis's motion.

Davis objected to the report and recommendation. First, Davis argued the report and...