United States v. Taurean Davis , 631 F. App'x 200 ( 2016 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 15-4208
    UNITED STATES OF AMERICA,
    Plaintiff – Appellant,
    v.
    TAUREAN RAHSAAN DAVIS,
    Defendant - Appellee.
    No. 15-4237
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    TAUREAN RAHSAAN DAVIS,
    Defendant - Appellant.
    Appeals from the United States District Court for the Eastern
    District of North Carolina, at Raleigh. W. Earl Britt, Senior
    District Judge. (5:14-cr-00107-BR-1)
    Submitted:    January 29, 2016              Decided:   February 4, 2016
    Amended: February 4, 2016
    Before NIEMEYER   and   MOTZ,   Circuit   Judges,   and   DAVIS,   Senior
    Circuit Judge.
    No. 15-4208 vacated and remanded;         No.   15-4237   dismissed    by
    unpublished per curiam opinion.
    Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
    Chief Appellate Attorney, Jennifer Dominguez, Assistant Federal
    Public Defender, Raleigh, North Carolina, for Appellant.
    Thomas G.   Walker,   United   States  Attorney,   Jennifer  P.
    May-Parker, Erin C. Blondel, Assistant United States Attorneys,
    Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    2
    PER CURIAM:
    Taurean Rashaan Davis pleaded guilty to possession of a
    firearm    by     a    felon,   in     violation        of    
    18 U.S.C. § 922
    (g)(1)
    (2012).         The district court sentenced Davis to 51 months of
    imprisonment.          The Government appealed from the judgment and
    Davis    filed     a   cross-appeal      of       the   sentence,      challenging        the
    application of an enhancement under the Sentencing Guidelines
    for possession of the firearm in connection with another felony
    offense.        For the reasons that follow, we vacate and remand for
    resentencing.
    We review a sentence for reasonableness, applying an abuse
    of discretion standard.              Gall v. United States, 
    552 U.S. 38
    , 51
    (2007); see also United States v. Layton, 
    564 F.3d 330
    , 335 (4th
    Cir.    2009).         In   reviewing    the      district         court’s    calculations
    under    the     Guidelines,     “we    review      the      district      court’s      legal
    conclusions de novo and its factual findings for clear error.”
    United States v. Manigan, 
    592 F.3d 621
    , 626 (4th Cir. 2010)
    (internal quotation marks omitted).                     We will “find clear error
    only if, on the entire evidence, we are left with the definite
    and firm conviction that a mistake has been committed.”                                
    Id. at 631
     (internal quotation marks and alteration omitted).
    Under    the    Sentencing      Guidelines,          the    base     offense    level
    applicable to a violation of § 922(g) is 20 if the defendant has
    previously sustained a prior conviction for a felony controlled
    3
    substance       offense.          U.S.      Sentencing          Guidelines         Manual
    § 2K2.1(a)(4)(A)        (2012).       The          Guidelines        define    a   felony
    controlled substance offense in part as an offense punishable by
    imprisonment for a term exceeding one year that prohibits the
    possession of a controlled substance with intent to distribute.
    See    USSG    §§ 2K2.1    cmt.   n.1,     4B1.2(b).            In    calculating      the
    advisory Guidelines range, the district court determined that
    Davis’ 2012 North Carolina conviction for possession with intent
    to    deliver   marijuana    was     not       a    felony   controlled         substance
    offense, and declined to apply a base offense level of 20.                              On
    appeal, the Government argues this conclusion was error.
    Under    North     Carolina       law,       the   presumptive          range    of
    imprisonment for Davis’ prior offense was 6 to 17 months of
    imprisonment, and he was sentenced to that range.                             Under North
    Carolina’s Justice Reinvestment Act of 2011, however, Davis was
    required to be released onto post-release supervision 9 months
    before the expiration of the 17-month maximum sentence.                                The
    district court determined that because Davis had to be released
    after serving only eight months of incarceration, that offense
    was not punishable by a term exceeding one year of imprisonment.
    In United States v. Barlow, No. 15-4114, 
    2015 WL 9269972
    (4th Cir. Dec. 21, 2015), we reached a different conclusion.                            In
    Barlow, we held that the term of post-release supervision is
    part of the term of imprisonment.                   
    Id.
     at *2-*5.        Therefore, we
    4
    conclude that based on our decision in Barlow, the district
    court erred in determining that Davis’ prior conviction was not
    a felony controlled substance offense.
    Accordingly,       on    the   Government’s        appeal,      we   vacate    the
    sentence and remand for resentencing.                        As the district court
    will have to calculate the Guidelines range in accordance with
    our decision, we decline to consider the argument raised in
    Davis’    cross-appeal          challenging         a        different     Guidelines
    calculation      at     this    time.          We   therefore        dismiss      Davis’
    cross-appeal without prejudice to his raising that issue should
    the   district        court    apply     the    challenged          enhancement     upon
    resentencing.*
    We dispense with oral argument because the facts and legal
    contentions   are      adequately       presented       in    the   materials     before
    this court and argument would not aid in the decisional process.
    No. 15-4208 VACATED AND REMANDED
    No. 15-4237 DISMISSED
    *
    As we decline to consider this issue, we express no
    opinion regarding the propriety of application of the Guidelines
    enhancement.
    5
    

Document Info

Docket Number: 15-4208

Citation Numbers: 631 F. App'x 200

Filed Date: 2/4/2016

Precedential Status: Non-Precedential

Modified Date: 1/13/2023