FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. George Z. Singal, U.S. District Judge]
Hilary Billings, Assistant Federal Defender, on brief for
Renée M. Bunker, Assistant United States Attorney, and
Richard W. Murphy, Acting United States Attorney, on brief
Lynch, Stahl, and Thompson, Circuit Judges.
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
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.
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.
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.
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."
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.
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 ...