United States v. Salim Davis ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-2795
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UNITED STATES OF AMERICA
v.
SALIM DAVIS,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-18-cr-00270-001)
District Judge: Honorable Gene E. K. Pratter
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 19, 2022
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Before: CHAGARES, Chief Judge, McKEE, and PORTER, Circuit Judges.
(Filed: October 14, 2022)
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OPINION
_____________________

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
CHAGARES, Chief Judge.
A jury found Salim Davis guilty of four counts relating to the possession of a
firearm and the distribution of controlled substances. Davis raises several issues on
appeal challenging his conviction and sentence. For the following reasons, we will
affirm the judgment of the District Court.
I.
We write primarily for the parties and recite only the facts essential to our
decision. Philadelphia Police Inspector Verdell Johnson testified that on December 29,
2017, he was off duty in an unmarked car and exited his car to move a trash bag blocking
the road. While he was outside of his car, he heard a “loud boom” followed by a “couple
other booms.” Appendix (“App.”) 124. Johnson saw Davis and another man, each
pointing a black handgun toward Theodore Street. Johnson was about 25 to 30 feet away
from the men. He testified that “[t]here was no one else on the street.” App. 547.
Johnson got back into his car and radioed for backup. While waiting for backup, Johnson
slowly followed Davis and the other man.
Johnson eventually exited his vehicle, drew his gun, and identified himself as a
police officer. Two other officers (Officer Brown and Officer Wells) arrived. Davis
discarded his jacket, and Officer Wells placed Davis in handcuffs. Officer Wells
conducted a pat down of Davis and felt “a large bulge in his right pants pocket.” App.
625. He removed the object and found a “standard prescription tinted pill bottle” that
“didn't have any kind of labeling on it.” Id. The pills inside the bottle were stuffed inside
plastic wrap. He also recovered over one thousand dollars in cash from the same pant
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pocket. Officer Wells noticed a locket around Davis’ neck about the size of a watch that
“rattled when it moved.” App. 627. Wells removed the locket, opened it, and found
more pills. App. 218. Officer Brown found a black and silver Smith & Wesson handgun
in the pocket of Davis’ discarded jacket.
An indictment charged Davis with four counts: (1) aiding and abetting the making
of a false statement to a federal firearms licensee; (2) being a felon in possession of a
firearm; (3) possession of Xanax with intent to distribute; and (4) possession of a firearm
in furtherance of a drug trafficking crime. Davis proceeded to trial.
In addition to the officers, the Government called Basiyr Kelly as a witness. Kelly
testified that he bought a car from Davis in February 2017 and that he owed Davis
approximately $400 at the time the events of this case unfolded. He testified that, to
make up for the debt, Davis asked Kelly to “get a gun for him.” App. 782. Kelly
explained that he met up with Davis at a gun shop and purchased a .40 caliber Smith &
Wesson for Davis. Kelly filled out the forms to purchase the firearm and identified
himself as the buyer.
On cross and recross examination, the defense questioned Kelly about a
Springfield XD gun, a different firearm than the one at issue at the trial. The defense
specifically asked Kelly whether he received a Springfield XD gun from a man named
Jonathan Shannon and whether Kelly had then asked Davis whether he knew anybody
interested in purchasing the gun. Kelly denied that he had. The defense then questioned
Special Agent Justin Hines about Kelly’s testimony. Agent Hines testified that Kelly had
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in fact purchased a Springfield XD gun from someone named Jonathan Shannon and had
contacted Davis to see if Davis knew anyone interested in purchasing that gun.
A jury found Davis guilty on all counts. Davis moved for acquittal pursuant to
Rule 29 of the Federal Rules of Criminal Procedure, as well as a new trial pursuant to
Rule 33. The District Court denied both motions and sentenced Davis to 100 months of
imprisonment. In calculating the sentence, the District Court applied a four-level
sentencing enhancement under the United States Sentencing Commission Guidelines
Manual (the “Guidelines” or “U.S.S.G.”) § 2K2.1(b)(6)(B), which applies if the
defendant “used or possessed any firearm or ammunition in connection with another
felony offense.” Id. The court applied the enhancement based on Davis’ alleged
commission of a Pennsylvania state law offense of recklessly endangering another
person. Davis timely appealed.
II.1
A.
Davis contends that the Government failed to correct false testimony from Kelly.
“We review for clear error a trial court’s factual finding that a witness’s testimony was
not false and we will not disturb that finding unless it is wholly unsupported by the
evidence.” United States v. Hoffecker, 530 F.3d 137, 183 (3d Cir. 2008). A witness
commits perjury if he “gives false testimony concerning a material matter with the willful
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291.
4
intent to provide false testimony, rather than as a result of confusion, mistake, or faulty
memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993).
Davis points to several portions of Kelly’s testimony that he claims are perjurious,
including Kelly’s denial that he received a gun from Shannon and contacted Davis about
that gun. The District Court held that, while confusing, Kelly’s testimony was not
perjurious. The court did not clearly err in so holding. In the portions of his testimony
that Davis claims were false, Kelly seemed confused about whether the defense’s
questions refer to the Springfield XD gun or the Smith & Wesson gun. For example,
when the defense asked Kelly whether he contacted Davis to ask if Davis “knew anybody
who might be interested in purchasing a firearm,” Kelly responded, “[h]e reached out to
me . . . [t]hat’s how he got the gun. I owed him. So me getting the gun was supposed to
pay off my debts.” App. 859. While the defense’s question appears to refer to the
Springfield XD gun, Kelly’s response refers to the Smith & Wesson gun. And when the
defense asked Kelly about whether he lied to investigators about a transaction with
Shannon, Kelly stated, “I basically lied to them how [sic] I got the gun for him.” App.
834. When the defense clarified whether Kelly meant the gun for Shannon, Kelly
responded, “[n]o, for Salim Davis.” App. 834. We therefore hold that the District Court
did not clearly err in holding that Kelly did not commit perjury.2
2
Davis also argues that the evidence presented at trial was insufficient to support his
conviction of aiding and abetting the making a false statement to a federal firearms
licensee, which he contends was based entirely on Kelly’s testimony. Because we hold
that the District Court did not clearly err in concluding that Kelly’s testimony was not
false, we also hold that there was sufficient evidence to support Davis’ conviction on this
count.
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B.
Davis argues that the evidence at trial was insufficient to support several of his
convictions. When reviewing challenges to the sufficiency of evidence, we “review the
record in the light most favorable to the prosecution to determine whether any rational
trier of fact could have found proof of guilt beyond a reasonable doubt.” United States v.
Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en banc) (cleaned up). We
review de novo a District Court’s denial of a Rule 29 motion and apply the same standard
as the District Court. Id. at 424.
1.
Davis argues that the evidence presented at trial was insufficient to support his
conviction of possession of Xanax with intent to distribute because the Government
presented no evidence that Davis dealt Xanax. Davis instead argues that he possessed
Xanax for personal use.
Viewing the record in the light most favorable to the Government, sufficient
evidence supported a conviction on this count. The Government presented a host of
circumstantial evidence to support Davis’ intent to distribute Xanax. See United States v.
Mercado, 610 F.3d 841, 845 (3d Cir. 2010). For example, Davis tested negative for
Xanax nine times in 2017. Special Agent Gerard Gobin also testified that, in his
experience, the division of pills between the label-free bottle and the locket, the pills
wrapped in plastic, the presence of a firearm, and the cash all supported the inference that
Davis possessed the Xanax for distribution. Gobin further testified that the pills were
slightly different shapes and sizes, which indicated to him that they came from “more
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than one source and more than one location.” App. 987–88. Based on this circumstantial
evidence, a rational jury could find that Davis intended to distribute Xanax.
2.
Davis next argues that the evidence presented at trial was insufficient to support
his conviction of possession of a firearm in furtherance of a drug-trafficking crime. To
convict Davis of this count, the Government was required to prove: (1) that he
committed a predicate drug-trafficking crime; (2) that he knowingly possessed a firearm;
and (3) that he did so in furtherance of the predicate drug-trafficking crime. See United
States v. Bailey, 840 F.3d 99, 112 (3d Cir. 2016). Davis contends that the Government
failed to present evidence to support the “in-furtherance” element. The following
nonexclusive factors are relevant to the “in-furtherance” determination:
the type of drug activity that is being conducted, accessibility of the firearm, the
type of the weapon, whether the weapon is stolen, the status of the possession
(legitimate or illegal), whether the gun is loaded, proximity to drugs or drug
profits, and the time and circumstances under which the gun is found.
United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004).
Given the factors the jury may consider in assessing the “in-furtherance” element,
there was sufficient evidence to support the conviction. The gun was found in Davis’
jacket pocket, making it very accessible. Drugs and cash were also found on his person.
And the gun was found after Officer Johnson heard shots and saw Davis holding a gun.
This provides more than enough evidence for the “in-furtherance” element, and we
therefore hold that the evidence was sufficient to support a conviction on this count.
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C.
Davis argues that the Government exercised its peremptory challenges in violation
of Batson v. Kentucky, 476 U.S. 79 (1986) by striking a juror who appeared to be Latino.
We review Batson claims for clear error.3 See Flowers v. Mississippi, 139 S. Ct. 2228,
2235 (2019). A Batson challenge requires a three-step inquiry, the first of which is
whether the defendant made a prima facie showing that a peremptory challenge was
exercised on the basis of race. United States v. Savage, 970 F.3d 217, 266 (3d Cir. 2020).
The relevant factors for the first step are: “(1) the number of racial group members in the
panel, (2) the nature of the crime, (3) the race of the defendant and the victim, (4) a
pattern of strikes against racial group members, and (5) the prosecution’s questions and
statements during the voir dire.” Lewis v. Horn, 581 F.3d 92, 103 (3d Cir. 2009).
The factors for the first step of Batson weigh against Davis. The nature of the
crimes here have no racial component, and the defense does not allege a pattern of strikes
against racial group members. See Bronshtein v. Horn, 404 F.3d 700, 724 (3d Cir. 2005).
And the prosecutor did not ask questions during the voir dire that suggest that the strike
was because the juror appeared to be Latino. The District Court therefore did not err in
rejecting Davis’ Batson claim.
3
The Government argues that Davis’s Batson challenge was untimely and that, as a result,
plain error review applies. It is unnecessary for us to reach this issue because we will
affirm the District Court’s ruling under the clear error standard.
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D.
Davis argues that the District Court erred in applying a four-level enhancement
based upon his alleged commission of a Pennsylvania state law offense of recklessly
endangering another person. “We review a district court’s factual findings relevant to
Guidelines enhancements for clear error.” United States v. Raia, 993 F.3d 185, 191 (3d
Cir. 2021). “[T]he proper application of the four-level enhancement under U.S.S.G. §
2K2.1(b)(6) requires finding, by a preponderance of the evidence that the defendant
committed another felony offense.” United States v. Hester, 910 F.3d 78, 88 (3d Cir.
2018) (cleaned up). The enhancement applies “regardless of whether a criminal charge
was brought, or a conviction obtained” for another felony. U.S.S.G. § 2K2.1, cmt.
n.14(C).
The District Court found that Davis violated 18 Pa. Cons. Stat. Ann. § 2705 in
applying the four-level enhancement. To prove that Davis violated this statute, the
Government had to prove by a preponderance of the evidence that Davis “(1) possessed
a mens rea recklessness, (2) committed a wrongful deed or guilty act[,] and (3) created by
such wrongful deed the danger of death or serious bodily injury to another person.”
Commonwealth v. Emler, 903 A.2d 1273, 1278 (Pa. Super. 2006) (cleaned up).
While the “mere act of discharging a firearm does not on its own constitute
recklessly endangering another person,” Pennsylvania courts have upheld a conviction
for reckless endangerment where the defendant “fired a handgun into his porch ceiling
with a witness mere feet away.” Commonwealth v. Shaw, 203 A.3d 281, 284 (Pa. Super.
2019). Here, there was a preponderance of the evidence that Davis fired a gun toward a
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city street with his co-defendant standing next to him. We therefore hold that the District
Court did not clearly err in applying the enhancement.4
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
4
Davis also moved to suppress the pill bottle, cash, and locket. A review of a district
court’s denial of a motion to suppress is for clear error as to findings of fact and plenary
as to legal determinations regarding the denial of the motion. United States v. Williams,
974 F.3d 320, 350 (3d Cir. 2020). The officers had probable cause to arrest Davis after
Officer Johnson heard gunshots and witnessed Davis holding a gun. See Wright v. City
of Philadelphia, 409 F.3d 595, 601 (3d Cir. 2005). Given that the arrest was valid,
Officer Wells’ search of Davis’ person was a valid search incident to arrest. See United
States v. Robinson, 414 U.S. 218, 235 (1973); United States v. Shakir, 616 F.3d 315, 317
(3d Cir. 2010) (“The permissible scope of a search incident to arrest includes the
arrestee’s person . . . construing that phrase to mean the area from within which he might
gain possession of a weapon or destructible evidence.” (cleaned up)). We will therefore
affirm the District Court’s denial of Davis’ motion to suppress.
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