US v. Davis

• Decision Date: 02 April 2010
• Docket Number: No. 09-10731.,09-10731.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tony Eugene DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

602 F.3d 643

UNITED STATES of America, Plaintiff-Appellee, v. Tony Eugene DAVIS, Defendant-Appellant.

No. 09-10731.

United States Court of Appeals, Fifth Circuit.

April 2, 2010.

James Wesley Hendrix, Asst. U.S. Atty. (argued), Dallas, TX, Robert Austin Klinick, Nancy E. Larson, Asst. U.S. Attorneys, Fort Worth, TX, for Plaintiff-Appellee.

William Reynolds Biggs, Asst. Fed. Public Def. (argued), Dallas, TX, for Defendant-Appellant.

Before KING, JOLLY and STEWART, Circuit Judges.

KING, Circuit Judge:

Defendant-appellant Tony Eugene Davis appeals the sentence of 24 months of imprisonment and two years of supervised release imposed following the revocation of his supervised release. Davis contends that remand for resentencing is warranted because there is a reasonable probability that, but for the district court's consideration of an incorrect advisory sentencing range, he would have received a lesser sentence. On plain error review, we affirm.

I. BACKGROUND

On January 21, 2009, the vehicle in which Davis was traveling as a passenger was stopped for a traffic violation in Walker County, Texas. Davis, a convicted armed bank robber,¹ was five months into a five-year term of supervised release. Noticing that the vehicle's three occupants appeared nervous and were providing inconsistent stories, the officer who initiated the stop obtained Davis's permission to search the vehicle, which was registered in Davis's name. The search revealed a loaded model Cf-200, Hi-Point .380 caliber pistol in a briefcase on the rear passenger seat. Davis admitted that the briefcase belonged to him. Also in the vehicle were several notes on colored paper that read:

This is a robbery. I want all of your big bills. No ink spots. No transmitters. Please hurry ... I will shoot you. Have a nice day.

These notes were found throughout the car, including one in a bank bag, another in the glove compartment, and yet another in Davis's wallet. Davis was arrested for being a felon in possession of a firearm, a third-degree felony under Texas law, see TEX. PENAL CODE ANN. § 46.04 (Vernon 2003), and was later indicted in Texas state court.

The district court held a hearing on July 15, 2009, to determine whether Davis's supervised release should be revoked. Davis's probation officer testified that Davis did not have permission to be in Texas on the day of the traffic stop — Davis had arranged to live in Arkansas upon release from prison and was required to inform his probation officer before leaving the state, which he had not done. The probation officer also testified that the terms of Davis's supervision prohibited him from committing any new federal, state, or local offenses and from possessing a firearm. The district court found, after hearing this testimony, that Davis had violated the conditions of his supervised release.

A Supervised Release Violation Report prepared by the probation office indicated that Davis had a criminal history category of II and had committed a Grade A violation of the conditions of supervised release. Under the advisory policy statements (the "policy statements") in Chapter 7 of the United States Sentencing Guidelines (the "Guidelines"), these factors yielded an advisory range of imprisonment of 15 to 21 months. U.S. SENTENCING GUIDELINES MANUAL § 7B1.4(a) (2009) ("U.S.S.G."). The statutory maximum punishment for Davis's violation was three years of imprisonment plus two years of supervised release. See 18 U.S.C. § 3583(e)(3), (h).² At the revocation hearing, Davis's counsel represented that the 15 to 21 month advisory range was correct and requested that Davis receive a sentence within that range. After hearing Davis's allocution, the district court imposed 24 months of imprisonment to be followed by two years of supervised release. The district court commented to Davis:

You weren't on supervised release for five months before you got rearrested.... You didn't give reintegration a chance. Within five months you were already out of the district, and then you are carrying a gun and have this note that looks like you are doing some more armed robberies. And I don't need to hear any argument from you. I have heard plenty from you.

The parties now agree that the 15 to 21 month advisory range was incorrect. Davis's violation was in fact a Grade B violation under the policy statements because the firearm found in Davis's briefcase, a pistol, is not the type of firearm that would support a more serious Grade A violation.³ The correct advisory range was therefore only 6 to 12 months. U.S.S.G. § 7B1.4(a). Davis contends that the district court's consideration of an incorrect advisory range provides a basis to vacate his sentence and order resentencing. Davis concedes that because he did not raise this objection in the district court, plain error review applies.

II. THE LEGAL STANDARD

A district court may impose any sentence upon revocation of supervised release that falls within the statutory maximum term allowed for the revocation sentence, but must consider the factors enumerated in 18 U.S.C. § 3553(a) and the policy statements before doing so. 18 U.S.C. § 3583(e); United States v. McKinney, 520 F.3d 425, 427 (5th Cir. 2008).⁴ Had Davis properly preserved his objection to the 15 to 21 month advisory range, we would review to determine whether the sentence imposed was unreasonable or "plainly unreasonable." See United States v. Jones, 484 F.3d 783, 792 (5th Cir.2007).⁵ Because Davis did not object to the 15 to 21 month advisory range in the district court, however, we review under a more deferential standard for plain error. United States v. Davis, 487 F.3d 282, 284 (5th Cir.2007).

To establish plain error, an appellant must show a forfeited error that is clear or obvious and that affected his substantial rights. Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). Ordinarily, an error affects substantial rights only if it "`affected the outcome of the district court proceedings.'" Id. (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also Davis, 487 F.3d at 284. If the appellant makes this showing, "the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error `seriously affects the fairness, integrity or public reputation of judicial proceedings.'" Puckett, 129 S.Ct. at 1429 (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770).

In the sentencing context, we have held that an appellant can show an impact on substantial rights — and therefore a basis for reversal on plain error review — where the appellant can show a reasonable probability that, but for the district court's error, the appellant would have received a lower sentence. United States v. Garcia-Quintanilla, 574 F.3d 295, 303-04 (5th Cir. 2009). We have specifically applied this rule where the district court considered an incorrect advisory range under the Guidelines for an initial sentence, United States v. John, 597 F.3d 263, 284-85 (5th Cir. 2010), and in a number of unpublished cases have done the same where, as here, the district court considered an incorrect advisory range under the policy statements for a sentence imposed upon revocation of supervised release. See United States v. Jimenez, No. 08-11175, ___ Fed. Appx. ___, 2010 WL 445620, at *1 (5th Cir. Feb. 8, 2010) (per curiam); United States v. Arkadie, 344 Fed.Appx. 966, 967 (5th Cir.2009) (per curiam); United States v. Soliz, 344 Fed.Appx. 900, 902 (5th Cir. 2009) (per curiam). This is consistent with the rule in other circuits. See, e.g., United States v. Miller, 557 F.3d 910, 916 (8th Cir.2009) (concluding, in the revocation context, that "an error is prejudicial only if there is a reasonable probability that the defendant would have received a lighter sentence but for the error").⁶ As the appellant, Davis bears the burden of establishing reasonable probability. Garcia-Quintanilla, 574 F.3d at 303.

III. ANALYSIS

The parties do not dispute that the error in the advisory range that the district court considered was clear and obvious. The issues are whether that error affected Davis's substantial rights under the "reasonable probability" test, and if so, whether the error "seriously affects the fairness, integrity or public reputation of judicial proceedings," Puckett, 129 S.Ct. at 1429 (internal quotation marks omitted), such that we should exercise our discretion to remand for resentencing. Davis contends that there is a reasonable probability that, but for the district court's consideration of the incorrect range, his sentence would have been lower. He argues that a reasonable probability can be inferred because the district court considered the higher, incorrect range in weighing the § 3553(a) factors and reaching its sentence determination; because there is no overlap between the correct 6 to 12 month advisory range and incorrect 15 to 21 month range; and because there is a significant gap between the correct range and the 24 month sentence actually imposed.⁷ He also contends that the error in this case seriously affects the fairness or integrity of the proceedings, and therefore is of the type that we should exercise our discretion to remand. The Government, pointing out that the district court imposed a sentence above the high end even of the incorrect range and commented on the severity of Davis's offense,⁸ counters that Davis has not met his burden of showing a reasonable probability that his sentence would have been lower absent the district court's consideration of the incorrect range, and that even if Davis could meet this burden, this is not the type of circumstance in which remand would be appropriate.

A. Whether Davis Has Shown a "Reasonable Probability"

We are not convinced that Davis has met his burden of establishing a reasonable probability that the district court's consideration of an incorrect advisory range affected his...