U.S. v. Davis

• Decision Date: 17 August 2004
• Docket Number: No. 04-4014.,04-4014.
• Citation: 380 F.3d 183
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arnell Dion DAVIS, a/k/a Flip, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 183

380 F.3d 183

UNITED STATES of America, Plaintiff-Appellee, v. Arnell Dion DAVIS, a/k/a Flip, Defendant-Appellant.

No. 04-4014.

United States Court of Appeals, Fourth Circuit.

Argued: June 4, 2004.

Decided: August 17, 2004.

Appeal from the United States District Court for the Eastern District of Virginia, Jerome B. Friedman, J.

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ARGUED: Timothy Vitow Anderson, Chesapeake, Virginia, for Appellant. Sherrie Scott Capotosto, Assistant United States Attorney, Office of the United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United States Attorney, Michael J. Elston, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judge WILKINSON joined. Judge MICHAEL wrote an opinion concurring in part and dissenting from Part II.A.2.

OPINION

LUTTIG, Circuit Judge:

Appellant, Arnell Davis, was charged with suborning perjury, obstruction of justice, and related charges stemming from his attempts to persuade a witness to testify falsely in his favor at his earlier trial on federal drug and gun possession charges. Due to his deception, Davis was acquitted of all but a minor drug charge at his first trial. In the trial below, however, he was convicted of the instant charges, and sentenced to 62 months imprisonment. Davis appeals from that judgment, claiming, most significantly, that the district court erred by granting the government's motion for a six-level upward departure based on U.S. Sentencing Commission, Guidelines Manual ("USSG") § 5K2.9, p.s. ("Criminal Purpose") (2003).¹ For the following reasons, we now affirm.

I.

A.

When Davis was arrested for speeding in Suffolk, Virginia, in July 2001, police officers recovered a loaded 9mm pistol from the car's dashboard, and found almost two pounds of marijuana in a backpack behind the passenger seat. Davis, the car's lone occupant, was charged with possession with intent to distribute marijuana in violation of 21 U.S.C. § 841; carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a firearm by a drug user, in violation of 18 U.S.C. § 922(g)(3). He was tried on these counts before a federal jury but, except for a simple possession of marijuana conviction, was acquitted on all counts.

Subsequently, however, the government discovered evidence that Davis had convinced his ex-girlfriend, Sophia White, to testify falsely at trial that the marijuana actually was hers and, unbeknownst to Davis, she was holding it for someone else. In May 2003, a second grand jury returned a four-count indictment charging Davis with conspiracy to commit perjury and obstruction of justice, in violation of 18 U.S.C. § 371; witness tampering, in violation of 18 U.S.C. § 1512(b)(1); subornation of perjury, in violation of 18 U.S.C. § 1622; and obstruction of justice, in violation of 18 U.S.C. § 1503, and Davis was tried again on each of these different counts.

In that second trial, which led to the convictions and sentence from which Davis now appeals, the prosecution primarily relied on White's testimony, in which she explained how she had perjured herself during Davis' first trial by stating that the marijuana was hers. White's testimony was corroborated by a series of letters that Davis wrote to White when he was in prison awaiting his first trial. After hearing this evidence, the second jury convicted Davis on all counts. A presentence report was prepared that placed Davis (for reasons explained in more detail below) in Criminal History Category I with an adjusted offense level of 19, resulting in a sentencing range of 30-37 months. The parties agreed, however, that if Davis had been convicted at his first trial his sentence would have been 60-66 months, given that the section 924(c) charge, of which Davis was acquitted after White's perjured testimony, carried a mandatory minimum sentence of 60 months. See United States v. Davis, 293 F.Supp.2d 652, 655 (E.D.Va.2003). The government moved for an upward departure to address the disparity between the ranges.

The district court granted the government's motion, reasoning that an upward departure was justified because the guideline range did not adequately reflect the gravity of Davis' criminal conduct "due to the unique circumstances of this case." Davis, 293 F.Supp.2d at 656. The court upwardly departed six levels to level 25 and sentenced Davis, within the new sentencing range, to 62 months in prison.

II.

On appeal, Davis argues, first, that the evidence presented at his second trial was insufficient to support at least two of his convictions and, second, that the district court erred in granting the government's motion for an upward departure. Because, however, the latter claim is by far the more substantial one, we address that claim first.

A.

Pursuant to 18 U.S.C. § 3742, as recently amended by the PROTECT Act,² we no longer apply a unitary abuse-of-discretion standard when reviewing departure decisions, but instead review "certain departure decisions," including "the ultimate decision to depart," "de novo." See United States v. Stockton, 349 F.3d 755, 764 & n. 4 (4th Cir.2003) (also concluding that this change to the standard of review did not raise Ex Post Facto Clause concerns), cert. denied, ___ U.S. ___, 124 S.Ct. 1695, 158 L.Ed.2d 385 (2004); see also United States v. Riggs, 370 F.3d 382 384-85 & n. 1 (4th Cir.2004). Nevertheless, these amendments do not disturb our preexisting standards of review for factual determinations made during sentencing, nor for the degree of the departure.³ See also United States v. Thurston, 358 F.3d 51, 70-71 (1st Cir.2004) (While appellate review of whether a departure decision was justified under the guidelines is now de novo,"the extent of the departure granted by the district court is reviewed deferentially, just as it was prior to the PROTECT Act."). Consequently, we review the district court's factual findings regarding its departure for clear error, see Stockton, 349 F.3d at 764 (citing United States v. Rybicki, 96 F.3d 754, 757-58 (4th Cir.1996)), and the reasonableness of the extent to which the district court upwardly departed for abuse of discretion, see United States v. Gary, 18 F.3d 1123, 1127 (4th Cir.1994).

The offense guidelines applied by the presentence report to Davis' four counts of conviction were USSG §§ 2J1.2 and 2J1.3 ("Obstruction of Justice" and "Perjury or Subornation of Perjury," respectively). Taken together, these sections direct the sentencing court to apply USSG § 2X3.1 ("Accessory After the Fact") to an underlying criminal offense "[i]f the offense involved obstructing the investigation or prosecution of [the underlying] criminal offense" or "if the offense involved perjury, subornation of perjury, or witness bribery in respect to [the underlying] criminal offense," so long as "the resulting offense level [from either cross reference] is greater than that determined [by applying sections 2J1.1 or 2J1.2]." See USSG §§ 2J1.2(c)(1), 2J1.3(c)(1). Section 2X3.1, in turn, calculates its base offense level from the "offense level" specified in the guidelines for the underlying criminal offense that the defendant's offenses of conviction for subornation and obstruction of justice attempted to conceal. That is, except at the extremes or in other circumstances not relevant here, the base offense level for section 2X3.1 is computed by subtracting six levels from the offense level for the underlying offense. See USSG § 2X3.1. This method presented no problem for Davis' drug trafficking offense (which has an offense level of eight, based on the amount of marijuana found). But Davis' gun charge was based on 18 U.S.C. § 924(c), which has an offense guideline (section 2K2.4) but has not been assigned an "offense level."⁴

Thus, section 2X3.1, which would normally produce a heightened sentence for an offender in similar circumstances, could not be applied to Davis' section 924(c) offense. Using only the offense level for the marijuana charge, the resulting offense level under 2X3.1 would be significantly lower than that obtained by straight application of sections 2J1.2 and 2J1.3, so the defendant's sentence was calculated with respect to those sections only — producing the 30-37 month guideline range. See Davis, 293 F.Supp.2d at 655. Notably, however, the presentence report mentioned section 5K2.9 as a factor that, if proven, could warrant an upward departure.

Davis makes several arguments in support of his ultimate claim that the upward departure was error. His contentions, grouped broadly, require us to resolve at least two questions: first, whether the district court's identified basis for departure was a permissible one under the facts of the case, and second, whether the extent of the departure made by the district court was reasonable. See United States v. Lawrence, 349 F.3d 724, 726 (4th Cir.2003). Under the standard of review set forth above, we review the first question de novo, and the second for abuse of discretion.

1.

By statute, an upward departure is only justified if "the court finds that there exists an aggravating ... circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a [higher] sentence." 18 U.S.C. § 3553(b) (2000); see also USSG § 5K2.0, p.s. (implementing and elaborating on section 3553(b)). In Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the Supreme Court interpreted the relevant departure provisions and delineated three categories of departures based on permissible factors (i.e., those that are not explicitly forbidden):

(1) departures based on an encouraged factor [not taken into account by the applicable guideline];...