United States v. Davis, 09–2086.

• Decision Date: 12 April 2012
• Docket Number: No. 09–2086.,09–2086.
• Citation: 676 F.3d 3
• Parties: UNITED STATES of America, Appellee, v. Matthew DAVIS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

676 F.3d 3

UNITED STATES of America, Appellee,

v.Matthew DAVIS, Defendant, Appellant.

No. 09–2086.

United States Court of Appeals, First Circuit.

Heard Feb. 6, 2012.Decided April 12, 2012.

Paúl Camarena, by Appointment of the Court, for appellant.

John A. Wortmann, Jr., Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, and Dina Michael Chaitowitz, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, SOUTER,^* Associate Justice, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

Defendant-appellant Matthew Davis was sentenced as a career offender pursuant to § 4B1.1 of the United States Sentencing Guidelines. While Davis's appeal of his sentence was pending, we decided two cases that affected which types of Massachusetts convictions could be considered predicates for career offender status under § 4B1.1. See United States v. McGhee, 651 F.3d 153 (1st Cir.2011); United States v. Holloway, 630 F.3d 252 (1st Cir.2011). Regardless of these changes in the law, however, Davis cannot meet the exigencies of the plain error test in challenging his classification as a career offender, and we therefore affirm.

I. Facts & Background

We recite only the facts relevant to this sentencing appeal. On February 24, 2008, Davis, then nineteen years old, was arrested on an outstanding warrant. Upon searching Davis, the Boston police found in his possession four bags containing small amounts of cocaine base and one bag of marijuana. He was subsequently charged with possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and with aiding and abetting, in violation of 18 U.S.C. § 2, in the United States District Court for the District of Massachusetts. On April 9, 2009, after the district court denied his motion to suppress, Davis pled guilty to the first count. At the change of plea hearing, the assistant United States attorney (AUSA) stated that Davis qualified as a career offender under the sentencing guidelines based on two prior convictions for crimes of violence. See U.S.S.G. § 4B1.1. In its colloquy with Davis, the district court added the following:

You heard reference to the Career Offender Guideline. This is a guideline that automatically escalates, based on a person's prior conviction, a person's Criminal History Category to the highest, which is Category VI, and it typically results in a sentencing range like the one that [the AUSA] described, in the 150–or–so–month area. This is not a mandatory minimum sentence, however. This is an advisory recommendation to the Court. So I still have to decide whether that is appropriate or excessive in your case when we actually get to sentencing in this matter. Do you feel you understand how the process is going to work?

Davis responded in the affirmative. Davis did not object to the characterization by the AUSA or by the court that he was a career offender under § 4B1.1, and he did not contest the AUSA's assertion that he had two prior convictions for crimes of violence.

In the Presentence Report (PSR) dated July 2, 2009, the probation officer summarized Davis's criminal history, including juvenile adjudications for resisting arrest and assault and battery. The PSR also detailed two adult convictions, both from 2006: one for assault and battery and a second for resisting arrest. Each adult conviction contained a description of the crime culled from a police report. In its description of the 2006 assault and battery, the PSR stated that the “defendant struck the other student above the left eye, tearing the skin and causing it to bleed heavily.” The PSR concluded that, because of the two adult convictions, Davis met the prerequisites for career offender status and that his criminal history category would therefore be Category VI, rather than the Category V that would have been established by his ten criminal history points. The PSR noted that Davis had filed no objections to the report.

Also on July 2, 2009, the government filed its sentencing memorandum. In describing Davis's criminal history, the government referred extensively to the PSR and to police reports detailing Davis's past conduct. The government attached the relevant police reports, as well as various affidavits and news articles. It did not, notably, attach copies of Davis's various convictions or any other equivalent materials demonstrating the outcome or character of the charges brought against him. The government's memorandum asserted that the probation office had correctly determined that Davis was a career offender under the sentencing guidelines based on having been twice convicted of crimes of violence. The government argued for a sentence of 96 months, rather than the guidelines' advisory recommendation of 151–188 months for a career offender in Davis's position, due to Davis's youth and the relatively non-serious nature of the predicate offenses. On July 7, 2009, Davis filed a sealed motion for downward departure, in which he made no objection to his classification as a career offender or to the PSR's characterization of his adult convictions. Davis argued that 38 months would be a reasonable sentence.

At the sentencing hearing, which took place on July 9, 2009, the district court recognized that “because of the operation of the career offender provision,” Davis's advisory sentence for “what would have been a small drug offense” ballooned to 151–188 months.¹ The government again characterized Davis as a career offender and emphasized his juvenile record and gang involvement, while continuing to recommend a sentence of 96 months. Davis did not contest the government's characterization of his record and maintained his request for a sentence of 38 months. The district court, implicitly classifying Davis as a career offender by recognizing the 151–month advisory sentence as a starting point, ultimately sentenced Davis to 84 months' imprisonment. In the statement of reasons attached to the judgment, dated August 3, 2009, the district court adopted the PSR without change. Davis timely appealed his sentence.²

II. Discussion

Davis's appeal centers around the use by the district court of the career offender provision of the United States Sentencing Guidelines. See U.S.S.G. § 4B1.1. Under § 4B1.1, a defendant is considered a career offender if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (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.

Id. § 4B1.1(a). Once a defendant is classified as a career offender under § 4B1.1(a), his “criminal history category in every case” is elevated to the highest category, Category VI. Id. § 4B1.1(b).

Davis's claim on appeal is that he was sentenced as a career offender under § 4B1.1 in error. Considering him to be a career offender, the district court calculated Davis's advisory sentencing range as 151–188 months, though it ultimately imposed a sentence of 84 months; Davis claims that without the career offender classification, the advisory range would have been 21–27 months. There is no dispute that Davis satisfied the first two elements of § 4B1.1; Davis was nineteen years old at the time of his arrest, and possession of cocaine base with intent to distribute is clearly a controlled substance offense. Therefore, the only issue before us is whether the third element was met, that is, whether Davis had two predicate felony convictions for crimes of violence or controlled substance offenses.

First, nothing in Davis's juvenile record qualifies as a career offender predicate, as Massachusetts does not consider youthful offender determinations to be adult convictions. See United States v. McGhee, 651 F.3d 153, 158 (1st Cir.2011). On the other hand, it is just as evident that Davis's 2006 adult conviction for resisting arrest serves as a predicate offense. We have previously held that a Massachusetts conviction for resisting arrest categorically qualifies as a crime of violence for purposes of § 4B1.1. See United States v. Almenas, 553 F.3d 27, 33–34 (1st Cir.2009); see also United States v. Weekes, 611 F.3d 68, 72–73 (1st Cir.2010) (holding that a Massachusetts conviction for resisting arrest qualifies as a predicate conviction under the Armed Career Criminal Act, 18 U.S.C. § 924(e)). Davis's 2006 adult conviction for resisting arrest falls squarely within the category of crimes of violence that may serve as predicate offenses for purposes of career offender status.

The only item left in Davis's criminal history which could act as a qualifier for career offender status is his 2006 adult conviction for assault and battery. Whether this conviction may serve as his second predicate offense merits careful consideration due to recent changes in our circuit precedent.

To determine whether a defendant's prior offense qualifies as a crime of violence under § 4B1.1, a sentencing court must employ a categorical approach, examining the legal definition of the crime and not the defendant's particular conduct in committing the offense. Holloway, 630 F.3d at 256 (citing Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)).³

The first step in undertaking the categorical approach is to identify the offense of conviction. Id. (citing United States v. Giggey, 589 F.3d 38, 41 (1st Cir.2009)). Where the crime of conviction covers multiple offenses, some of which are considered crimes of violence and some of which are not, a court must examine certain approved documents to determine the offense of which the defendant was actually convicted. Id. at 257 (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). A court may look to “the terms of the charging...