                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-3-2008

USA v. Davis
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1630




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                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                 Nos. 06-1382 / 06-1630 / 06-2321


                UNITED STATES OF AMERICA

                                v.

                      ANTHONY ARCHER,
                               Appellant (06-1382)

                         MALIK DAVIS,
                                 Appellant (06-1630)

                      TYREE STRATTON,
                                Appellant (06-2321)




            Appeal from the United States District Court
              for the Eastern District of Pennsylvania
           (D.C. Criminal Action No. 05-cr-00068-3/1/2)
             District Judge: Honorable Stewart Dalzell


            Submitted Under Third Circuit LAR 34.1(a)
                       November 6, 2007

Before: SCIRICA, Chief Judge, AMBRO, and JORDAN, Circuit Judges

                   (Opinion filed: June 3, 2008)




                            OPINION
AMBRO, Circuit Judge

       Defendants Anthony Archer, Malik Davis, and Tyree Stratton were charged with

conspiracy to commit armed bank robbery, armed bank robbery, and using a weapon

during a crime of violence. Archer and Davis pled guilty, and Stratton was convicted by a

jury. Each was sentenced to a significant term of imprisonment. Archer and Davis

appeal their sentences, and Stratton appeals both his conviction and sentence. For the

reasons explained herein, we affirm.1

                                          I. Facts

       In November 2004, defendants Archer, Davis, and Stratton robbed a Wachovia

Bank in Philadelphia, PA. In the course of the robbery, one robber—who could not be

identified because the defendants were all wearing masks—became angry when he

learned that the bank employee with the vault key was out to lunch. Consequently, he

shot his weapon into the floor, causing one of the victims to sustain a bullet fragment in

her head. Defendants robbed the bank of approximately $2,763. They fled, first by car,

and when they hit another vehicle and flipped their own car, defendants took off on foot.




   1
     The District Court exercised jurisdiction over these matters pursuant to 18 U.S.C.
§ 3231. We have jurisdiction on appeal pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. §
1291. See United States v. Cooper, 437 F.3d 324, 327–28 (3d Cir. 2006). With regard to
sentencing, we review “factual findings relevant to the Guidelines for clear error” and
exercise “plenary review over a district court’s interpretation of the Guidelines.” United
States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). We also exercise plenary
review over constitutional questions. United States v. McKoy, 452 F.3d 234, 236 (3d Cir.
2006). We review the overall sentence for reasonableness. Cooper, 437 F.3d at 326–27.

                                             2
During flight, Archer pointed a gun at police officers, and the police fired at him,

shooting him in the arm. All three defendants were ultimately arrested, and the police

were able to recover all but $33 of the stolen money.

       Defendants were charged with conspiracy to commit armed bank robbery, in

violation of 18 U.S.C. § 371 (Count I), armed bank robbery, in violation of 18 U.S.C. §

2113(d) (Count II), and using and carrying a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c)(1) (Count III). As noted, Archer and Davis

pled guilty to all counts, and Stratton was tried by a jury and convicted on all counts.

Archer was sentenced to a 216-month term of imprisonment, a five-year term of

supervised release, restitution in the amount of $29,533,2 and a $300 special assessment.

Davis was sentenced to a 340-month term of imprisonment, reflecting 220 months on

each of Counts I and II (to run concurrently) and 120 months on Count III (to run

consecutively), a five-year term of supervised release, restitution in the amount of

$29,533, and a $300 special assessment. Stratton was sentenced to a 260-month term of

imprisonment, reflecting 140 months on each of Counts I and II (to run concurrently) and

120 months on Count III (to run consecutively), a five-year term of supervised release,

restitution in the amount of $29,533, and a $300 special assessment.

       On appeal, Archer argues that the District Court erred in assessing two criminal



   2
     The defendants’ $29,533 restitution consists of a $33 obligation to the bank, which is
the amount that could not be recovered from sum stolen, and a $29,500 obligation to the
insurer of the vehicle hit by the defendants in their failed car-chase get-away.

                                              3
history points for a juvenile adjudication for simple assault. Davis raises four objections

to his sentence: (1) that the career criminal enhancement he received over-represents his

criminal history and (2) violates his Sixth Amendment rights, (3) the District Court

improperly imposed a ten-year mandatory minimum sentence, and (4) the ultimate

sentence was unreasonable. Finally, Stratton requests a new trial and/or sentencing

hearing, claiming that he was prejudiced at trial by the Government’s opening statement

and the admission of certain evidence. He further contends that his sentence is

unreasonable and that he should receive a lower criminal history calculation under the

amendments to the U.S. Sentencing Guidelines that took effect on November 1, 2007.

                                        II. Discussion

       A. Anthony Archer

       Archer argues that the District Court should not have assessed him two criminal

history points for his juvenile adjudication for simple assault because the facts of the

incident that gave rise to that adjudication are in dispute. Specifically, as explained in the

Pre-Sentence Report, the juvenile petition for the simple assault charged that Archer had

pointed a handgun at an unidentified man and demanded that he remove his clothes.

During an interview with the probation office, Archer described the incident as a street

fight between him and another young man. He insisted that he did not point a gun or

demand that the young man remove his clothes. Because the details of the juvenile

adjudication are in dispute, Archer contends that the PSR’s reporting of the adjudication



                                              4
was “unreliable” and the District Court’s reliance on it runs afoul of Shepard v. United

States, 544 U.S. 13 (2005). This argument fails because, whether the incident involved a

gun or was merely a street brawl, it is still an adjudication for simple assault that results in

a two-point addition to Archer’s criminal history. Thus, even assuming that Archer’s

characterization of the incident resulting in the juvenile adjudication is correct, he would

still receive two points for it under U.S.S.G. §§ 4A1.1(b) & 4A1.2(a)(1). In this context,

the District Court correctly determined Archer’s criminal history under the advisory

Guidelines.

       B. Malik Davis

       Davis first contends that the District Court should have exercised its discretion to

depart downward pursuant to U.S.S.G. § 4A1.3(b) because his designation as a career

offender under U.S.S.G. § 4B1.1(a) over-represents his criminal history. Absent legal

error, we lack jurisdiction to consider a District Court’s decision not to depart. United

States v. Jackson, 467 F.3d 834, 838 (3d Cir. 2006). The District Court considered

Davis’s argument that the career offender designation over-represented his criminal

history and concluded that it did not. There is no allegation that the Court misunderstood

its role or otherwise committed legal error. Accordingly, we lack jurisdiction to consider

the issue of discretion.

       Davis also argues that his designation as a career offender under

U.S.S.G. § 4B1.1(a) violates his Fifth and Sixth Amendment rights because his prior



                                               5
convictions were not charged in the indictment or proved to a jury beyond a reasonable

doubt. However, because the career offender designation did not expose Davis to a

penalty beyond the statutory maximum, there is no constitutional violation. See United

States v. Grier, 475 F.3d 556, 562 (3d Cir. 2007) (en banc) (“Judicial factfinding in the

course of selecting a sentence within the permissible range does not offend the Fifth and

Sixth Amendment rights to a jury trial and proof beyond a reasonable doubt.”).

       Davis’s next contention is that the District Court erred in imposing the mandatory

minimum sentence under 18 U.S.C. § 924(c) for intentional discharge of a weapon during

a crime of violence because it was not clear which defendant fired the weapon. However,

it is well established that a criminal defendant is liable for the reasonably foreseeable

actions of each of his or her co-conspirators. Pinkerton v. United States, 328 U.S. 640,

647–48 (1946); United States v. Ramos, 147 F.3d 281, 286 (3d Cir. 1998) (applying

Pinkerton liability in the contest of § 924(c)); United States v. Casiano, 113 F.3d 420,

427 (3d Cir. 1997) (same).

       Finally, Davis claims that the District Court failed to take into account certain

18 U.S.C. § 3553(a) considerations—such as his youth and remorse for his involvement

in the events of conviction—in fashioning an appropriate sentence. We must “determine

if the [C]ourt acted reasonably in imposing the resulting sentence . . . by considering the

relevant factors.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). Having

reviewed the record, we are satisfied that the Court appropriately assessed each of the



                                              6
relevant § 3553(a) factors in this case.

       C. Tyree Stratton

       Stratton, the only appellant tried by a jury, contends that he was denied a fair trial

and that his sentence was unreasonable. With regard to the trial, he asserts that the

prosecutor’s opening statement was improper because in it she said the following:

    The evidence will also show that the threat that Officer Shackles perceived was
    very real because the gun that Anthony Archer was holding that day and pointing
    in the officer’s direction was loaded. It was a Taurus semiautomatic pistol. It
    was loaded with hollow-point bullets. And at the trial you will hear that hollow-
    point bullets are the sort of bullets that are designed to penetrate Kevlar vests, the
    bulletproof vests that police officers wear. These are the kind of bullets you will
    hear that are commonly known as “cop-killer” bullets.

App. 55–56. Stratton did not object to the statement at trial, and thus we review it for

plain error under Federal Rule of Criminal Procedure 52. To establish plain error,

Stratton must “show not only that error affected the outcome of the trial, but that the error

was clear or obvious under current law. If these requirements are met, we may

reverse . . . if the error ‘seriously affect[ed] the fairness, integrity, or public reputation of

judicial proceedings.’” United States v. Rivas, 493 F.3d 131, 136 (3d Cir. 2007)

(emphasis in original) (quoting Johnson v. United States, 520 U.S. 461, 470 (1997)).

Even assuming that these threshold inquiries are met in this case, we do not believe that

the reference to “cop-killer” bullets (which, indeed, is how these bullets are known)

worked to prejudice Stratton in a way that would “seriously affect” his trial.

       Along the same theme, Stratton contends that the District Court erred by



                                                7
overruling his objection to a police officer’s testimony that the bullets in Archer’s gun

were “cop-killer” bullets. He argues that the reference was unfairly prejudicial and the

prejudice outweighed any probative value under Federal Rule of Evidence 403. We

review the District Court’s ruling for abuse of discretion. United States v. Givan, 320

F.3d 452, 461 (3d Cir. 2003). The Court assessed the evidence, finding it probative on

the issue of danger and on the issue of conspiracy. It also sought assurance from the

Government that there would be no further use of the term in subsequent portions of the

trial. We conclude that the Court’s analysis struck an appropriate balance under Rule

403.

       With regard to his sentence, Stratton argues that it is unreasonable because the

District Court adopted the Pre-Sentence Report’s advisory Guidelines range, which

included enhancements for the actions of Stratton’s co-defendants, and because the Court

did not properly evaluate the § 3553(a) factors in its ultimate sentence. As discussed

above, a defendant is liable for the reasonably foreseeable actions of his or her co-

conspirators, so his first argument is unavailing. Next, the record reflects that the District

Court properly considered the § 3553(a) factors, and indeed sought to fashion a sentence

that was in line with that of Stratton’s co-conspirators and reflected the severity of the

offense, but was still well below the statutory maximum because the District Judge

“harbor[ed] the (modest) hope that defendant’s release in middle age will find his

antisocial fires banked sufficiently that he may, just possibly, reenter society as something



                                              8
short of the ‘urban terrorist’ he matured into on November 12, 2004.”

       After this case was submitted, Stratton moved to supplement his brief to request

remand to the District Court for a new sentencing hearing on the ground that his criminal

history category would be calculated differently in light of the United States Sentencing

Commission’s amendment to the criminal history provisions of the Sentencing

Guidelines. Specifically, he contends that, in light of Amendment 709, he would receive

only one criminal history point, rather than three, for his previous convictions for

burglary, possession of an instrument of a crime, and criminal conspiracy, because he was

sentenced for all three of those crimes on the same day. We need not consider the merits

of this argument because Amendment 709 was not given retroactive effect pursuant to

U.S.S.G. § 1B1.10(c). See also United States v. Wood,       F.3d    , 2008 WL 1902663

(3d Cir. May 1, 2008).

                                            ***

       We thus affirm on all issues.




                                              9
