United States v. Jeffrey Davis ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4398
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY TATE DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:11-cr-00227-BO-1)
Submitted: November 7, 2012 Decided: November 14, 2012
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Joshua L. Rogers, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Tate Davis seeks to appeal his conviction for
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g) (2006), and his eighty-seven-month sentence. We
affirm.
Davis first challenges the district court’s denial of
his motion to withdraw his guilty plea. The district court’s
denial of a motion to withdraw a guilty plea is reviewed for
abuse of discretion. United States v. Ubakanma, 215 F.3d 421,
424 (4th Cir. 2000). “[A] defendant does not have an absolute
right to withdraw a guilty plea, even before sentencing.”
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
Instead, he must show “that a fair and just reason supports his
request to withdraw.” Id. (internal quotation marks omitted;
discussing factors to be considered by court).
Davis contends that the district court abused its
discretion in denying his motion to withdraw his guilty plea
because he possesses no valid predicate felony conviction to
serve as the basis for the instant offense. Specifically, Davis
argues that his 2002 federal felony conviction cannot serve as
the basis for the instant offense because it was predicated on
prior state court convictions resulting in a sentence of less
than one year of imprisonment and, thus, is facially invalid in
light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)
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(en banc). Further, Davis claims that his 2007 state felony
conviction cannot serve as a predicate for the instant offense
because the only reason that he received a sentence of more than
one year of imprisonment was due to the inclusion of the
allegedly invalid 2002 conviction in the calculation of his
prior record level.
Davis is mistaken. This court squarely rejected this
line of argument in United States v. Kahoe, 134 F.3d 1230 (4th
Cir. 1998), holding that any subsequently-realized invalidity of
a predicate felony conviction is immaterial to a § 922(g)(1)
prosecution, as long as the prior conviction was in effect on
the date that the defendant possessed the firearm. Id. at 1235.
In this case, there is no dispute that Davis’s 2002 federal
felony conviction and 2007 state felony conviction were both in
effect on April 15, 2011, when Davis possessed the firearm that
is the subject of his current § 922(g)(1) conviction, and that
he received sentences exceeding one year on each of these prior
convictions. As a result, Davis’s current § 922(g)(1)
conviction is proper, notwithstanding the possible effects of
Simmons on his previous convictions. We have reviewed Davis’s
other contentions with respect to the Moore factors, and we
conclude that Davis’s plea was knowing and voluntary and that he
was adequately advised by competent counsel. We therefore
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affirm the district court’s denial of Davis’s motion to withdraw
the plea.
Davis also challenges the reasonableness of his
eighty-seven-month sentence. This court reviews a sentence for
reasonableness, applying “an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007). We “must first
ensure that the district court committed no significant
procedural error.” Id. If no procedural error was committed,
we review the sentence for substantive reasonableness, “tak[ing]
into account the totality of the circumstances.” Id. A
sentence that falls within a properly calculated Guidelines
range is presumptively reasonable on appeal, and the defendant
bears the burden to “rebut the presumption by demonstrating that
the sentence is unreasonable when measured against the [18
U.S.C.] § 3553(a) [(2006)] factors.” United States v. Montes-
Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation
marks omitted).
Here, the district court sentenced Davis to eighty-
seven months’ imprisonment, within his Guidelines range. We
have reviewed the contentions raised on appeal and conclude that
Davis has not met his burden of establishing that his within-
Guidelines sentence was unreasonable when measured against the
§ 3553(a) factors. We therefore conclude that the district
court did not abuse its discretion in sentencing Davis.
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Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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