U.S. v. Davis, 89-5755

• Decision Date: 03 October 1990
• Docket Number: No. 89-5755,89-5755
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wilson Lewis DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 132

915 F.2d 132

UNITED STATES of America, Plaintiff-Appellee, v. Wilson Lewis DAVIS, Defendant-Appellant.

No. 89-5755.

United States Court of Appeals, Fourth Circuit.

Argued May 11, 1990.

Decided Oct. 3, 1990.

Charles Linwood Morgan, Jr. (argued), Wishart, Norris, Henninger & Pittman, Charlotte, N.C., for defendant-appellant.

Joseph Douglas Wilson (argued), U.S. Dept. of Justice, Washington, D.C. (Thomas J. Ashcraft, U.S. Atty., David Alan Graham, Asst. U.S. Atty., Charlotte, N.C., on the brief), for plaintiff-appellee.

Before WILKINSON and WILKINS, Circuit Judges, and BULLOCK, United States District Judge for the Middle District of North Carolina, sitting by designation.

PER CURIAM:

Wilson Davis pled guilty to one count of bank robbery in violation of 18 U.S.C. Sec. 2113(a) and to one count of theft of bank funds in violation of 18 U.S.C. Sec. 2113(b). Davis was sentenced pursuant to the Sentencing Guidelines to 240 months in jail. Davis argues on appeal that the district court erred at sentencing by classifying him as a career offender and by not departing downward since he was unarmed during the commission of the robbery. We affirm.

Because the offense of unarmed robbery was treated as a crime of violence with a statutory maximum of twenty years, Davis's base offense level was 32. Davis had previously been convicted of two felony crimes of violence, and this latest conviction made him a career offender with a criminal history category of VI. The Sentencing Guidelines range is 210-262 months. Had the robbery not been considered a crime of violence, Davis's base offense level would have been 17 and his criminal history category would have been III. The Sentencing Guidelines range would be 30-37 months.

Davis argues that it was error to classify him as a career offender under the Guidelines because unarmed robbery is not a crime of violence. There is no merit to Davis's position. The Guidelines provide that:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. Sec. 4B1.1. Whether Davis's latest felony conviction was a crime of violence is the only career offender element which he contests. The Guidelines define "crime of violence" as any offense punishable by imprisonment for a term exceeding one year which "has as an element the use, attempted use, or threatened use of physical force against the person...