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United States v. Davis

United States Court of Appeals, First Circuit

October 11, 2017

UNITED STATES OF AMERICA, Appellee,
v.
KARIM DAVIS, a/k/a/ Wise, Defendant, Appellant.

         APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]

          J. Hilary Billings, Assistant Federal Defender, on brief for appellant.

          Renée M. Bunker, Assistant United States Attorney, and Richard W. Murphy, Acting United States Attorney, on brief for appellee.

          Before Lynch, Stahl, and Thompson, Circuit Judges.

          LYNCH, Circuit Judge.

         Karim Davis challenges his 151-month prison sentence on appeal, after he pled guilty in 2016 to drug crimes, arguing that the district court erred in (1) sentencing him as a career offender based on his prior drug convictions under N.Y. Penal Law §§ 110 and 220.31; and (2) applying the criminal-livelihood enhancement under U.S.S.G. § 2D1.1(b)(15)(E). There was no error, and we affirm his sentence.

         I.

         After indictment in 2015, Karim Davis pled guilty in August 2016 to two counts of drug trafficking: (1) possession with intent to distribute heroin and cocaine base and (2) conspiracy to possess with intent to distribute the same, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. The first count arose from crimes alleged in Davis's 2015 indictment, and the second, from an information the Government filed in 2016 based on Davis's alleged conspiracy to distribute drugs from April 2014 to June 2015.

         The Presentence Investigation Report (PSR) found Davis responsible for 479 grams of heroin and 31.4 grams of cocaine base. Under the Sentencing Guidelines, this merited a base offense level of 26. The PSR recommended a two-level enhancement because the offense was "part of a pattern of criminal conduct engaged in as a livelihood, " U.S.S.G. § 2D1.1(b)(15)(E); and an additional three-level increase for Davis's leadership role as a manager or a supervisor, id. § 3B1.1(b). As a result, Davis's adjusted offense level was 31.

         However, the PSR indicated that the career-offender guideline under U.S.S.G. § 4B1.1(b) governed Davis's total offense level because he had "at least two prior felony convictions of . . . a controlled substance offense." The report identified his first predicate offense as a criminal sale of a controlled substance, in violation of N.Y. Penal Law § 220.31, and his second predicate offense as an attempted criminal sale of a controlled substance, in violation of N.Y. Penal Law § 110.

         Section 4B1.1(b) of the Guidelines states that "if the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply." It also mandates that "[a] career offender's criminal history category in every case under this subsection shall be Category VI."

         For Davis's offense, the career-offender guideline prescribed an offense level of 32. See U.S.S.G. § 4B1.1(b)(3). Because this was higher than the offense level otherwise applicable -- 31 -- Davis received an enhancement for being a career offender. After a three-level reduction for acceptance of responsibility, the PSR recommended a total offense level of 29. Together with a criminal history category of VI, the resulting Guidelines Sentencing Range (GSR) was 151-188 months of imprisonment. See U.S.S.G. ch. 5, pt. A, sentencing table.

         At the sentencing hearing, the district court adopted the PSR's recommendation over Davis's objections. The judge also found that Davis qualified for the criminal-livelihood enhancement, but emphasized that "the same guideline range would occur regardless of what [he found] on that topic." Ultimately, the ...


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