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U.S. v. Davis

United States Court of Appeals, Eleventh Circuit
Nov 18, 2009
587 F.3d 1300 (11th Cir. 2009)

Summary

holding that the district court did not make impermissible findings of fact at sentencing when the defendant did not object to the facts in the PSI

Summary of this case from United States v. Thomas

Opinion

No. 08-16617.

November 18, 2009.

William VanDercreek, Tallahassee, FL, for Emerson.

Robert G. Davies, Pensacola, FL, Terry Flynn, E. Bryan Wilson, U.S. Atty., Tallahassee, FL, for U.S.

Appeal from the United States District Court for the Northern District of Florida.

Before BLACK, WILSON and COX, Circuit Judges.



The central issue in this case is whether the district court's adoption at sentencing of the facts stated in Appellant Emerson Davis's Presentence Investigation Report (PSI) constituted a finding that Davis was responsible for conduct involving more than 4.5 kilograms of cocaine base. During the sentencing hearing, the district court only expressly found Davis responsible for more than 1.5 kilograms of cocaine base. The undisputed facts contained in the PSI, however, establish Davis was responsible for at least eight kilograms of cocaine base. After review, we conclude that in adopting the facts in the PSI the sentencing court found Appellant was responsible for more than 4.5 kilograms, even though the court did not expressly specify the exact quantity in excess of 1.5 kilograms.

I. BACKGROUND

In 1996, a jury convicted Davis of conspiracy to distribute and to possess with the intent to distribute cocaine, cocaine base, and marijuana, in violation of 21 U.S.C. §§ 841 and 846. At the time of Davis's sentencing, a defendant scored the highest base offense level available, a 38, if the sentencing court found him responsible for conduct involving more than 1.5 kilograms of cocaine base. See U.S.S.G. § 2D1.1(c)(1) (1995).

The district court found all of the drug-related factual findings in the PSI to be accurate and incorporated them into Davis's sentence. The uncontested statements in the PSI reveal Davis was responsible for, inter alia, at least eight kilograms of cocaine base. At sentencing, Davis asked the district court to specify the amount of powder cocaine, cocaine base, and marijuana for which he was responsible. The district court responded Davis's responsibility for more than 1.5 kilograms of cocaine base caused Davis to score the maximum base offense level available and, thus, a more specific finding was unnecessary. The district court stated Davis's sentence would be based on "the amount of cocaine base or crack cocaine" for which Davis was responsible. The court further remarked "this whole operation[] all of these people were involved in really dealt with — with crack cocaine."

With a base offense level of 38, due to his responsibility for more than 1.5 kilograms of cocaine base, a 4-level enhancement for his role in the offense, and a 2-level enhancement for possession of a firearm, Davis scored a total offense level of 44. With his criminal history category of IV, his Guidelines range was life in prison.

In January 2008, Davis moved for a modification of his sentence based on Amendment 706 of the Sentencing Guidelines, which lowered the base offense level for defendants found responsible for certain amounts of cocaine base. See U.S.S.G.App. C, amends. 706, 711, 713 (Supp. Mar. 3, 2008). The district court denied the reduction, explaining the PSI showed Davis was responsible for more cocaine base than permissible to be eligible for the reduction. Davis then filed a "Motion for Recalculation of Sentencing and Rehearing." The district court denied Davis's motion, reiterating its reasoning. Davis timely filed notice of appeal.

II. STANDARD OF REVIEW

This Court reviews de novo the district court's legal conclusions regarding its own authority under the Sentencing Guidelines, United States v. Jones, 548 F.3d 1366, 1368 (11th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1657, 173 L.Ed.2d 1025 (2009), and for clear error the factual findings underlying a district court's legal conclusions, United States v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002). We review for abuse of discretion a district court's decision not to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2). Jones, 548 F.3d at 1368, n. 1.

III. DISCUSSION

Amendment 706 to the Sentencing Guidelines, which applies retroactively, reduces from 38 to 36 the base offense level scored by defendants whose conduct involved more than 1.5, but fewer than 4.5, kilograms of cocaine base; it does not reduce the offense level for those responsible for more than 4.5 kilograms. See U.S.S.G.App. C, amends. 706, 711, 713 (Supp. Mar. 3, 2008); U.S.S.G. § 2D1.1(c)(1); Jones, 548 F.3d at 1369. When the Guidelines range pursuant to which a prisoner has been sentenced is subsequently lowered, a prisoner may move for a reduction in sentence in accordance with that modification. 18 U.S.C. § 3582(c)(2).

Davis filed a motion pursuant to section 3582(c)(2) arguing he was eligible for an Amendment 706 reduction because the district court at sentencing did not expressly state the quantity above 1.5 kilograms of cocaine base for which he was responsible. In denying Davis's motion, the district court reviewed its sentencing findings, noted it had adopted the factual findings in Davis's PSI, and determined in adopting those findings the court had already found Davis responsible for too much cocaine base to be eligible for an offense-level reduction.

Davis claimed, both in his "Motion for Recalculation of Sentencing and Rehearing" and on appeal, that the district court's determination he was responsible for more than 4.5 kilograms of cocaine base was an impermissible new finding. In a section 3582(c)(2) resentencing proceeding, the district court must maintain " all original sentencing determinations" apart from the original Guidelines range. United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (emphasis in original).

The district court did not make an impermissible new finding of fact in Davis's section 3582(c)(2) proceeding when it stated he was responsible for more than 4.5 kilograms of cocaine base. The sentencing court was permitted to make factual findings based on the undisputed statements in the PSI. See Fed.R.Crim.P. 32(i)(3)(A); United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006). Davis was deemed to have admitted, for sentencing purposes, the facts in the PSI he did not object to clearly and specifically at sentencing. See United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006); Bennett, 472 F.3d at 833.

By adopting the factual findings in the PSI that were deemed admitted by Davis when he failed to object to them, the sentencing court found Davis responsible for over eight kilograms of cocaine base. As the district court had already found Davis responsible for well over the 4.5 kilograms of cocaine base currently required to score Davis's original base offense level of 38, Davis was not eligible for a sentence reduction under Amendment 706. The court, therefore, did not err when it denied Davis's motions for modification and recalculation of his sentence.

AFFIRMED.


Summaries of

U.S. v. Davis

United States Court of Appeals, Eleventh Circuit
Nov 18, 2009
587 F.3d 1300 (11th Cir. 2009)

holding that the district court did not make impermissible findings of fact at sentencing when the defendant did not object to the facts in the PSI

Summary of this case from United States v. Thomas

holding that the original sentencing court's adoption of the PSR's factual finding that the offense involved at least 8 kilograms of crack cocaine rendered the defendant ineligible for relief under Amendment 706, even though the sentencing court originally had not specified an exact quantity in excess of 1.5 kilograms of crack cocaine

Summary of this case from United States v. Mejia

holding that a court can "make factual findings based on the undisputed statements in the PSI"

Summary of this case from United States v. Disla

holding that the original sentencing court's adoption of the PSI's factual finding that the offense involved at least 8 kilograms of crack cocaine rendered the defendant ineligible for relief under Amendment 706, even though the sentencing court originally had not specified an exact quantity in excess of 1.5 kilograms of crack cocaine

Summary of this case from United States v. Guyton

holding that Amendment 706 to the Sentencing Guidelines, which applies retroactively, is not applicable when the defendant was responsible for more than 4.5 kilograms of cocaine base

Summary of this case from Burton v. United States

finding that the defendant was responsible for more than 4.5 kilograms of cocaine base even though the district court did not specify an "exact quantity in excess of 1.5 kilograms" because the PSR, which the court adopted, established that the defendant was responsible for at least 8 kilograms of cocaine base

Summary of this case from United States v. Vega

concluding that "in adopting the facts in the PSI the sentencing court found Appellant was responsible for more than 4.5 kilograms, even though the court did not expressly specify the exact quantity in excess of 1.5 kilograms"

Summary of this case from United States v. Alexis

affirming the district court's use of an unobjected-to drug quantity amount in the PSI in a § 3582(c) proceeding

Summary of this case from United States v. Rios

deeming admitted facts in a presentence report that are not objected to by the defendant

Summary of this case from United States v. Walker

explaining that the defendant is deemed to have admitted facts in the PSI to which he did not specifically object

Summary of this case from United States v. Sierra

noting that, in a § 3582(c) resentencing, district courts "must maintain all original sentencing determinations apart from the original Guidelines range"

Summary of this case from United States v. Brewster

In Davis, the PSI stated that defendant Davis's offense conduct involved, inter alia, at least 8 kilograms of crack cocaine and recommended a base offense level of 38.

Summary of this case from United States v. Hamilton

explaining that "in a § 3582(c) resentencing proceeding, the district court must maintain all original sentencing determinations apart from the original Guidelines range"

Summary of this case from U.S. v. Cheatham

In United States v. Davis, 587 F.3d 1300 (11th Cir. 2009), the sentencing court expressly found only that Davis was responsible for more than 1.5 kilograms of crack cocaine, but the PSI stated Davis was responsible for at least 8 kilograms.

Summary of this case from U.S. v. Taylor
Case details for

U.S. v. Davis

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Emerson O. DAVIS, a.k.a…

Court:United States Court of Appeals, Eleventh Circuit

Date published: Nov 18, 2009

Citations

587 F.3d 1300 (11th Cir. 2009)

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