United States v. Davis, 17-2100

• Decision Date: 06 May 2019
• Docket Number: No. 17-2100,17-2100
• Citation: 923 F.3d 228
• Parties: UNITED STATES of America, Appellee, v. Barry DAVIS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

923 F.3d 228

UNITED STATES of America, Appellee,

v.Barry DAVIS, Defendant, Appellant.

No. 17-2100

United States Court of Appeals, First Circuit.

May 6, 2019

Jane F. Peachy, Assistant Federal Public Defender, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

Before Lynch and Lipez, Circuit Judges, and Katzmann,^* Judge.

LIPEZ, Circuit Judge.

Appellant Barry Davis pleaded guilty to sex trafficking crimes pursuant to a plea agreement and was sentenced to 216 months of imprisonment. He seeks a new sentencing hearing, claiming, in major part, that the prosecution breached the plea agreement by providing information to Probation and the court regarding victims of sex trafficking who were either covered by counts that were dismissed as part of the plea agreement, or who were never included in any counts in the indictment. He argues that the government's actions constitute prosecutorial misconduct invalidating his waiver of appeal. He also contends that he was provided inadequate notice of victim statements presented at the hearing.

After reviewing his claims, which are only partially preserved, we affirm the sentence imposed.

I.

A. Plea Agreement

Davis was charged in a nine-count indictment with sex trafficking by force, fraud, and coercion, in violation of 18 U.S.C. § 1591(a) and (b)(1) (Counts One, Three, Five, and Eight); transportation of an individual with intent to engage in prostitution, in violation of 18 U.S.C. § 2421 (Counts Two, Four, Six, and Nine); and sex trafficking of a child by force, fraud, and coercion, in violation of 18 U.S.C. § 1591(a), (b)(1), and (b)(2) (Count Seven). Davis was initially charged in a four-count indictment with charges related to two women, A.Z. and T.B. The nine-count superseding indictment added charges relating to three additional women, A.O., N.S., and C.D.

Just before trial, Davis pleaded guilty to Counts One through Four, Eight, and Nine, pursuant to a plea agreement. These charges related to Davis's coercive sex trafficking of A.Z., T.B., and C.D. In return for Davis's guilty plea, the government agreed to dismiss Counts Five through Seven, relating to his alleged coercive sex trafficking of A.O. and N.S., a minor. The government further agreed not to pursue additional charges relating to obstruction of justice or witness tampering. The parties also expressly agreed that "[n]othing in this Plea Agreement affects the U.S. Attorney's obligation to provide the Court and the U.S. Probation Office with accurate and complete information regarding this case."

With respect to the sentencing guideline calculations, Davis and the government jointly agreed that Davis's base offense level is 34; his offense level should be increased by three in accordance with the count grouping principles of U.S.S.G. § 3D1.4"because there are a total of three groups with offense levels of 34" (A.Z., T.B., and C.D.), see infra note 2; and the offense level should be reduced by three based on Davis's acceptance of responsibility, for a total offense level (TOL) of 34. The plea agreement is silent as to Davis's Criminal History Category (CHC). Nonetheless, the parties agreed that a sentence of incarceration between 180 and 240 months would be reasonable and appropriate. Finally, the plea agreement contained a waiver of Davis's right to appeal his conviction and any sentence "within the agreed-upon sentencing range." Davis "reserve[d] the right to claim that ... the prosecutor ... engaged in misconduct that entitles [him] to relief from [his] conviction or sentence."

B. Change of Plea Hearing, Presentence Report, Sentencing Memoranda

At the change of plea hearing, Davis represented that he had reviewed the plea agreement and understood the appellate waiver.¹ The government stated its belief that the guideline sentencing range would be 188 to 235 months if Davis were found to have a CHC of III, and 262 to 327 months if he were found to be a career offender. Defense counsel indicated that Davis understood these potential guideline ranges. In response to a question from the court asking if the government expected to call witnesses at the sentencing hearing, the government stated that it would "plan on talking to the women who were involved in this case" to determine if "they would like to either make an impact statement in court or in writing." The court and defense counsel then had the following exchange regarding these women:

Court: They have absolutely every right under the statutes to allocute, to present to the [c]ourt, but [a]re we having an evidentiary hearing on the [g]uidelines?

Defense Counsel: I don't think so, your Honor. We have an agreement on the [g]uidelines as part of the plea agreement, so I don't think there's going to be any evidence.

Court: So at most it's going to be victim impact statements, either orally or in writing?

Defense Counsel: That's right, your Honor.

The government subsequently submitted a statement of the offense conduct to the U.S. Probation Department, and Probation included it in the presentence report (PSR) with some editing. The statement vividly describes Davis's history of "pimping" -- providing and withholding drugs and using violence to force young, drug-addicted women into prostitution and then taking the proceeds. In addition to describing Davis's conduct in 2015 with A.Z., T.B., and C.D., the statement described his pimping of (1) A.O., the victim in to-be-dismissed Counts Five and Six, in 2001; (2) N.S., the minor victim in to-be-dismissed Count Seven, in 2003; (3) C.G., an "unnamed victim/witness," in 2015; and (4) J.A., whom Davis began pimping in 2013, and who was a witness to the counts involving C.D. The PSR also included this statement: "The victims in this instance are the women who were prostituted by the defendant. Victim letters have been sent. Any victim impact letters received will be forwarded to the [c]ourt and the parties."

Probation calculated Davis's TOL as 35 -- one level higher than specified in the plea agreement -- because it used a larger number of victims. Rather than counting only A.Z., T.B., and C.D. (charged victims) as outlined in the plea agreement, Probation also counted C.G. and J.A. (victims who were not charged in the indictment).²

Probation further added two points to Davis's criminal history score because he was on supervised release when he committed conduct involving J.A. His extensive criminal history included convictions for assaults of A.O. and N.S. (victims in the to-be-dismissed counts). Probation calculated a CHC of VI, which, when combined with the TOL of 35, yielded a guideline sentencing range of 292 to 365 months.

The government did not submit any objections to the PSR, but Davis did. Of relevance to this appeal, he objected to: (1) including information regarding A.O. and N.S. because he denied the allegations, and the government had agreed to dismiss the counts regarding those women; (2) including information regarding C.G. and J.A. because he had not been charged with or admitted to this conduct, and because "[t]he parties have agreed in the plea agreement that [J.A. and C.G. are] not [ ] victim[s] for purposes of calculating the guidelines"; (3) Probation's use of C.G. and J.A. in calculating his TOL; and (4) Probation's CHC calculation, particularly the addition of two points based on his conduct involving J.A.

In his sentencing memorandum, Davis recommended a sentence of 180 months and argued that his sentence should reflect only the conduct to which he had pleaded guilty -- "the trafficking of three adult women [A.Z., T.B., and C.D.] in 2015." He argued that the court was precluded from considering additional conduct "pursuant to the guidelines calculation agreed[ ] to by the government." Although noting his "concerns," based on the statement of offense conduct submitted to Probation, that the government "will not honor the terms of the plea agreement where they agreed to a guideline calculation that includes only the three victims to which [he] pled guilty," he "assum[ed] that the government will join him in th[e] argument[ ] that there are only three victims of the offense and that the guideline calculation set forth in the plea agreement i[s] the correct one." Nonetheless, he enclosed with his sentencing memorandum a letter he had sent the government "reminding them of their obligations pursuant to the plea agreement." In the letter, defense counsel claimed that the government's submission of information concerning A.O., N.S., C.G., and J.A. to Probation had "[e]ffected an end-run around the plea agreement," and "request[ed] that the government object to the PSR, insofar as it uses [conduct involving A.O., N.S., C.G., and J.A.] to arrive at a different guidelines calculation [than the plea agreement], and refrain from making argument regarding those alleged victims at sentencing."

In its sentencing memorandum, the government recommended a "severe sentence" of 240 months of incarceration based on Davis's "conduct in exploiting the vulnerabilities of numerous young women through psychological manipulation, force, and fear to prostitute themselves for his sole benefit," as well as his "lifetime spent violating the law." Pointing to the facts "set forth in detail in the PSR" and Davis's seeming self-centeredness and lack of remorse,³ the government characterized him as "a dangerous predator with no conscience." The government highlighted his state convictions for assaulting A.O. and N.S., and noted, "[a]lthough the counts involving both of these victims will be dismissed pursuant to the plea agreement, the fact that he pled guilty [to these assaults] belies his incredible claim that he is the actual victim in this case." The government further noted that it "expects the [c]ourt [at sentencing] will hear from a few of the women [Davis] victimized. Their stories ... will further support the government's sentencing recommendation."...