United States v. Davis , 155 F. App'x 852 ( 2005 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0933n.06
Filed: November 28, 2005
No. 04-5848
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
RONALD DAVIS, ) TENNESSEE
)
Defendant-Appellant. )
Before: SILER and SUTTON, Circuit Judges; SHARP, District Judge.*
SILER, Circuit Judge. Defendant Ronald Davis pled guilty to knowingly uttering and
possessing a counterfeited security with intent to deceive. He appeals his sentence (1) under Booker,
(2) for error in not granting a reduction for being a minimal or minor participant, and (3) for
miscalculation of criminal history. We REVERSE and REMAND for resentencing.
BACKGROUND
In 2001, John Riley approached Davis and stated that he knew someone who made
counterfeit checks. Id. Although Davis was uninterested in cashing the checks, he introduced Riley
to Keith McMinn, with whom Davis had a previous relationship involving counterfeit checks. The
three men agreed to split the proceeds of the checks. Later, Riley obtained a counterfeit check for
*
The Honorable Allen Sharp, United States District Judge for the Northern District of
Indiana, sitting by designation.
No. 04-5848
United States v. Davis
$32,000 and gave it to McMinn, who subsequently cashed it without notifying Davis. When Davis
learned the check was cashed, he felt he had been cheated and was owed $6,000. Accordingly, he
compelled McMinn to go to a bank to cash a personal check for Davis’s benefit. After bank
officials became suspicious and called police, McMinn confessed and disclosed the details of the
scheme. McMinn later stated that an acquaintance of his, Lee Hale, had been threatened in her home
by Riley and an unknown man if McMinn should confess to the police. After McMinn’s release on
bond, Davis telephoned McMinn stating that Davis had “put a hit” on McMinn. Further, Davis told
McMinn that it “was on” and that McMinn owed him $6,000.
Davis, Riley and McMinn were indicted on two separate counts of knowingly uttering and
possessing a counterfeited security with the intent to deceive. Davis pled guilty to Count 1 in 2004
and was sentenced under the 2000 Sentencing Guidelines to fifteen months imprisonment, two years
supervised release, and $27,000 in restitution. At sentencing, Davis objected to his sentence,
claiming he was entitled to a downward adjustment for having a minor or minimal role in the offense
under USSG § 3B1.2. However, the district court overruled this objection. In addition, Davis
objected to the inclusion under his criminal history of a 1996 conviction in Atlanta traffic court for
“allowing intoxicated driver to drive” for which he was sentenced to six months incarceration and
a $1,200 fine. He argued (1) that, in fact, he pled guilty to only a $100 fine, (2) there was not
enough evidence in the record to prove this conviction, and (3) this offense should be considered
a “minor traffic infraction” under USSG § 4A1.2(c)(2). After consideration, the district court ruled
the conviction was properly included and Davis was assessed two criminal history points for it.
DISCUSSION
-2-
No. 04-5848
United States v. Davis
1. Sixth Amendment
While the failure to raise his Sixth Amendment claim below was not a waiver,1 it is a closer
question whether Davis’s failure to assert his claim forfeited the claim (thereby requiring plain error
review) or whether the claim remains preserved (thereby requiring de novo review).2 Ultimately,
however, that determination is unimportant here since the district court plainly erred in sentencing
Davis. In reviewing for plain error, we must consider whether (1) there was an error, (2) which was
plain, (3) that affected the defendant’s substantial rights and, (4) that, in the court’s discretionary
view, seriously affects the fundamental fairness, integrity, or public reputation of judicial
proceedings. United States v. Trammel, 404 F.3d 397, 401 (6th Cir. 2005) (citation omitted).
Given that Davis was sentenced under the now-erroneous assumption that the Guidelines are
mandatory, three of the four prongs of the plain error test are easily satisfied. This court has said
there is plain error “where the defendant was sentenced under the pre-Booker mandatory Sentencing
Guidelines.” Id. at 402(citation omitted). Further, the fourth prong is satisfied because “a sentence
imposed under the pre-Booker regime satisfies this requirement, even in the absence of a Sixth
Amendment violation.” Id. at 403 (citation omitted).
As for the third prong, a presumption of prejudice is appropriate where a defendant was
sentenced under the pre-Booker mandatory Guidelines regime and the district court could have
1
There has been no “intentional relinquishment or abandonment of a known right.” United
States v. McDaniel, 398 F.3d 540, 546 (6th Cir. 2005) (citation omitted).
2
Preservation of a Sixth Amendment claim may exist even where that claim was not raised
in the court below. United States v. Strayhorn, 250 F.3d 462, 467 (6th Cir. 2001), overruled on
other grounds by United States v. Leachman, 309 F.3d 377 (6th Cir. 2002); but see United States
v. Davis 397 F.3d 340, 350 (6th Cir. 2005).
-3-
No. 04-5848
United States v. Davis
imposed a lower sentence in the post-Booker world. Id. at 402 In order to rebut this presumption,
the trial record must contain “clear and specific evidence that the district court would not have, in
any event, sentenced the defendant to a lower sentence under an advisory Guidelines regime.”
United States v. Barnett, 398 F.3d 516, 529 (6th Cir. 2005) (citation omitted). In this case, not only
is this rebuttal evidence absent from the record, but the record contained indications expressly to the
contrary.3 Therefore, the third prong is also satisfied.
2. Reduction in Offense Level
While a remand for resentencing is required under Booker, Davis’s remaining claims must
be addressed since the district court is required to consider the correct Guidelines-recommended
sentence on resentencing. United States v. Booker, 125 S.Ct. 738, 764 (2005). As to the first claim,
“[w]hether a defendant is entitled to a downward departure under 3B1.2 depends heavily on factual
determinations,” which an appellate court reviews only for “clear error.” United States v. Campbell,
279 F.3d 392, 396 (6th Cir. 2002). This court has noted that it “continue[s], in reviewing individual
Guidelines determinations, to apply the standards of review we applied prior to Booker.” United
States v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005).
The minimal participant provision is “intended to cover defendants who are plainly among
the least culpable of those involved in the conduct of a group” and is to be “used infrequently.”
USSG § 3B1.2, comment. (n.1-2). Defendant’s lack of knowledge, lack of understanding about the
3
This evidence includes an express statement by the court that it thought “ a sentence at the
low end of the Guidelines” was “appropriate,” and the fact that the actual sentence was at the bottom
of the Guidelines range. See Trammel, 404 F.3d at 402.
-4-
No. 04-5848
United States v. Davis
enterprise, and lack of understanding of the activities of others in it are indicative factors of a
minimal participant. Id. at comment. (n.1). A minor participant is one who cannot be described as
minimal, but whose conduct is less culpable than most other participants. Id. at comment. (n.3).
Here, the district court rested its decision on the defendant’s continued involvement in the
crime. Not only was Davis crucial to initiating the crime by bringing the parties together, but his
involvement also continued beyond this with his pressuring McMinn for payment. Furthermore,
although he did not participate in every act, Davis was to profit from it and his conduct does not
appear qualitatively different from other members of the fraud. In conclusion, the ultimate decision
appears entirely plausible in light of the record as a whole and cannot be said to be clearly
erroneous.
3. Criminal History Calculation
As to the Atlanta traffic violation, Davis argues that (1) the evidence presented was
insufficient to warrant inclusion of the conviction and (2) even if sufficiently proven, the crime
charged was a minor traffic infraction and, therefore, should be excluded from the criminal history
calculation. We review “a district court’s legal interpretation of the Guidelines de novo” and its
factual findings under a clearly erroneous standard. United States v. Cole, --- F.3d ---, 2005 WL
1903833, *1 (6th Cir. April 29, 2005). “This standard of review is not altered by the decision of the
Supreme Court in” Booker. Id.Davis first argues that there was insufficient evidence to warrant a two-point criminal
history assessment for this conviction. He contends that there should have been no points issued for
this offense since “he only received a $100.00 fine and no incarceration.” However, given the
-5-
No. 04-5848
United States v. Davis
concession alone, the offense clearly qualifies as a prior sentence and, as such, at least a one-point
assessment is appropriate.4 See USSG § 4A1.2(a)(2). In order for the conviction to warrant a two-
point assessment, there must have been a sentence of imprisonment of at least sixty days, Davis must
have served some amount of time for the conviction, and the sentence must not have been an
alternative sentence. USSG §§ 4A1.1(b); 4A1.2 comment. (n.2,4). The district court found that the
sentence “provide[d] for six months of incarceration.” However, the court made no finding as to
whether Davis served time or if this was an alternative sentence. The record itself contains scant
evidence about the nature of this conviction5 and throughout sentencing the defense strenuously
objected to the government’s characterization of the crime. Even so, Davis also failed to offer into
evidence any proof supporting his position. Due primarily to the lack of any contrary evidence in
the record and given the fact that the district court expressly found a two-point assessment
appropriate, the district court’s decision was not clearly erroneous. Nevertheless, upon remand, the
district court is not precluded from reconsidering this ruling, if Davis or the government wishes to
supplement the record on that point.
As to Davis’s other argument, for exclusion of the conviction under USSG § 4A1.2(c)(2),
the district court correctly ruled that a conviction under Georgia Code § 40-1-3 for allowing an
intoxicated driver to drive does not qualify as a “minor traffic infraction” under §4A2.c(2). Since
4
The trial court mistakenly referred to “Code Section 40-1-30” during sentencing. Instead,
the conviction must have occurred under Georgia Code 40-1-3 which would authorize up to a one
year sentence of imprisonment. See GA. CODE ANN. §§ 40-6-1, 17-10-3 (1996).
5
The only evidence indicating a non-alternative sentence had been served was its listing in
the presentence report and the probation officer’s statement that the report “shows the defendant was
sentenced to six months confinement. It does not reflect any probationary sentence.”
-6-
No. 04-5848
United States v. Davis
this is a purely legal question, we review it de novo. Cole, --- F.3d ---, 2005 WL 1903833, at *1.
An “‘infraction’ in the phrase ‘minor traffic infractions’... represents a ‘term of art’” and, as such,
is defined as “any offense for which the maximum authorized term of imprisonment is not more than
five days.” United States v. Rollins, 378 F.3d 535, 537 (6th Cir. 2004) (citation omitted). In this
case, the maximum authorized sentence is clearly beyond five days and, therefore, the trial court was
correct in ruling that the crime of conviction did not constitute a minor traffic infraction.
REVERSED and REMANDED for resentencing.
-7-