561 F. App'x 50
2d Cir.2014Background
- Defendant Jason Dantley Davis was convicted by a jury of possession with intent to distribute ≥5 grams of cocaine base and was resentenced after remand; on remand the district court imposed a 112‑month sentence.
- The resentencing followed this Court’s decision in United States v. Savage and reconsideration under the Fair Sentencing Act; Davis previously received a 240‑month sentence vacated on remand.
- The district court designated Davis a career offender based on two prior convictions, including a Connecticut second‑degree assault under Conn. Gen. Stat. § 53a‑60, and relied on the plea colloquy transcript to apply the modified categorical approach.
- The court also applied a statutory second‑offender enhancement under 21 U.S.C. § 851 based on a 1999 drug possession conviction, finding the underlying substance was crack cocaine using the plea transcript.
- Davis challenged: (1) whether § 53a‑60 is a categorical crime of violence; (2) whether consideration of the assault plea on remand exceeded the mandate; (3) sufficiency of the plea colloquy to prove the 1999 offense involved crack (and whether it was an Alford plea); and (4) substantive reasonableness of the 112‑month sentence.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Davis) | Held |
|---|---|---|---|
| Whether Conn. Gen. Stat. § 53a‑60 (2d degree assault) qualifies as a crime of violence for career‑offender status | Court may use the modified categorical approach and the plea colloquy shows intentional assault — a crime of violence | § 53a‑60 is overbroad and includes non‑violent conduct, so it is not categorically a crime of violence | Modified categorical approach was properly applied; plea colloquy established intentional assault; conviction is a crime of violence |
| Whether consideration of the assault conviction on remand violated the mandate rule | Remand made the assault conviction newly relevant after Savage; government legitimately introduced plea transcript on remand | Consideration exceeded scope of remand because government did not rely on the assault at the original sentencing and introduced new evidence on remand | No mandate‑rule violation; new evidence admissible on remand where issues became relevant and fairness permits it |
| Whether the 1999 drug plea established the controlled substance as crack (for § 851 enhancement), given Davis’s claimed Alford plea | Plea transcript shows Davis agreed facts that the substance tested positive for cocaine — supports crack finding | Davis contends he entered an Alford plea so did not admit the factual basis; his recollection undermines the transcript’s use | Transcript shows an unqualified guilty plea with factual admissions; district court did not clearly err in finding crack was involved |
| Whether the 112‑month sentence is substantively unreasonable (including consideration of post‑conviction rehabilitation and powder/crack disparity) | Court considered rehabilitation and disparity; sentenced well below Guidelines range (112 months v. 262 months) | Court failed to adequately consider rehabilitation and disparity between powder and crack sentencing | Sentence was reasonable; court explicitly considered rehabilitation and declined further reduction for crack/powder disparity but acted within discretion |
Key Cases Cited
- United States v. Savage, 542 F.3d 959 (2d Cir. 2008) (remand and discussion of plea‑based predicate convictions)
- United States v. Jackson, 59 F.3d 1421 (2d Cir. 1995) (crack cocaine triggers enhanced penalties under § 841(b)(1))
- United States v. Malki, 718 F.3d 178 (2d Cir. 2013) (mandate‑rule and limited resentencing presumption)
- United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002) (district court may address issues made newly relevant by appellate decision)
- United States v. Archer, 671 F.3d 149 (2d Cir. 2011) (admission of new evidence on remand permissible in special circumstances)
- United States v. Leonzo, 50 F.3d 1086 (D.C. Cir. 1995) (discussing fairness concerns when admitting new evidence on remand)
- Anderson v. City of Bessemer City, 470 U.S. 564 (1985) (clear‑error standard for factual findings)
- United States v. Keller, 539 F.3d 97 (2d Cir. 2008) (district court may consider crack/powder disparity and impose a lighter sentence)
- North Carolina v. Alford, 400 U.S. 25 (1970) (Alford plea permits conviction without explicit admission of guilt)