United States v. Davis, 2012 U.S. App. LEXIS 9428

Davis pled guilty to possession of ammunition by a felon under 18 U.S.C. § 922(g)(1).
Davis previously entered a no contest plea to state common law robbery; a concurrent state sentence followed.
The PSR cross-referenced the robbery guideline under § 2K2.1(c)(1)(A) on the theory the ammunition offense was connected to another offense.
At sentencing, conflicting evidence on how Davis obtained Wilkins's cell phone created disputes about whether a robbery occurred.
The district court overruled Davis’s objection, applied the robbery cross-reference, and imposed 106 months (plus credit for prior time).
Davis challenged the cross-reference as procedurally improper due to unresolved facts; the panel vacated and remanded for full fact-finding.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the cross-reference to robbery procedurally improper?	Davis argues insufficient evidence on the underlying robbery conduct.	Government contends the cross-reference is supported by the PSR and record.	Remand required; improper if critical facts unresolved.
Can a state no contest/Alford plea alone support the cross-reference?	No contest plea cannot alone establish the robbery cross-reference without conduct findings.	State conviction and plea could justify the cross-reference if conduct is established.	No; need findings of conduct; remand for fact-finding.
Must the district court resolve conflicting evidentiary shows regarding possession of the phone?	The court should determine whether the phone was taken from the victim as part of a robbery.	The court could rely on the conviction and PSR if proper; factual resolution needed.	Yes; failure to resolve requires remand.

Gall v. United States, 552 U.S. 38 (2007) (guidelines sentencing is advisory; standard of review depends on proper calculation)
United States v. Harvey, 532 F.3d 326 (4th Cir. 2008) (clear error/ de novo review for factual/ legal conclusions)
United States v. Carroll, 3 F.3d 98 (4th Cir. 1993) (cross-reference to state offenses permissible if supported by evidence)
United States v. Heater, 63 F.3d 311 (4th Cir. 1995) (burden to prove cross-referenced offense by preponderance)
United States v. Chandia, 514 F.3d 365 (4th Cir. 2008) (require resolution of factual disputes affecting guideline application)
State v. Richardson, 308 N.C.470, 302 S.E.2d 799 (1983) (robbery elements and timing of force; inducement to part with property)
State v. Hope, 317 N.C. 302, 345 S.E.2d 361 (1986) (necessity of force preceding or being concomitant with taking)
State v. Bell, 359 N.C. 1, 603 S.E.2d 93 (2004) (elements of common law robbery include nonconsensual taking by force or fear)
United States v. King, 673 F.3d 274 (4th Cir. 2012) (adjudication of guilt under Alford-type pleas for ACCA; relevance to admissibility)
State v. Alston, 534 S.E.2d 666 (2000) (Alford/No contest distinctions; use in related contexts)
State v. Chery, 691 S.E.2d 40 (N.C. Ct. App. 2010) (treatment of no contest pleas in North Carolina)