United States v. Davis
873 F.3d 343
| 1st Cir. | 2017Background
- Karim Davis pleaded guilty (2016) to possession with intent to distribute heroin and cocaine base and to conspiracy to do the same, covering acts through June 2015.
- PSR attributed 479 g heroin and 31.4 g cocaine base to Davis, yielding a base offense level 26 under the Guidelines.
- PSR recommended a 2-level criminal-livelihood enhancement and a 3-level leadership enhancement, yielding adjusted offense level 31.
- PSR also designated Davis a career offender under U.S.S.G. § 4B1.1 based on two prior New York drug convictions (N.Y. Penal Law § 220.31 and § 110), which produced an offense level 32 and criminal-history Category VI, giving a GSR of 151–188 months.
- The district court adopted the PSR, found the criminal-livelihood enhancement applicable (but noted it did not affect the range), and sentenced Davis to 151 months (bottom of GSR).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Davis's N.Y. Penal Law § 220.31 conviction is a § 4B1.1 "controlled substance offense" | Gov: § 220.31 proscribes sale of controlled substances and fits § 4B1.2(b) definition | Davis: § 220.31 (and attempted-sale analog) should not qualify as career-offender predicate | Court: Rejects Davis; § 220.31 qualifies based on First Circuit precedent (Bryant, Melvin) |
| Whether Davis's N.Y. Penal Law § 110 (attempt) conviction qualifies as a § 4B1.1 predicate | Gov: NY attempt convictions (including offer-to-sell) are tied to distribution and thus qualify | Davis: § 110 is broad; could encompass acts not amounting to attempted possession with intent to distribute (e.g., offers-to-sell without possession) | Court: Rejects Davis; NY law requires bona fide offer/ability to sell and attempt convictions are within the categorical definition (Bryant, Whindleton) |
| Whether applying the criminal-livelihood enhancement § 2D1.1(b)(15)(E) was error | Gov: Enhancement applies and district court found it proven | Davis: Court failed to consider costs/markup; enhancement improper | Court: Any error harmless because career-offender guideline controlled; Gordon forecloses Davis’s cost/markup argument |
Key Cases Cited
- United States v. Bryant, 571 F.3d 147 (1st Cir. 2009) (held NY attempted sale/offers-to-sell qualify as career-offender predicates under § 4B1.1)
- United States v. Melvin, [citation="628 F. App'x 774"] (1st Cir. 2015) (applies Bryant to similar NY drug-sale convictions)
- United States v. Whindleton, 797 F.3d 105 (1st Cir. 2015) (an offer to sell is necessarily related to distribution for categorical analysis)
- United States v. Gordon, 852 F.3d 126 (1st Cir. 2017) (district courts may rely on gross income evidence for § 4B1.3 application)
- United States v. Almenas, 553 F.3d 27 (1st Cir. 2009) (issues about whether prior convictions qualify under § 4B1.1 reviewed de novo)