12-4836-cr
United States of America v. Jason Dantley Davis

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 2nd day of April, two thousand fourteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         DEBRA ANN LIVINGSTON,
                     Circuit Judge,
         ANDREW L. CARTER, JR.*
                     District Judge.
____________________________________________________________

UNITED STATES OF AMERICA

                          Appellee,


                          -v-                            No. 12-4836-cr

JASON DANTLEY DAVIS, AKA Handsome,

                          Defendant-Appellant,

MYRON ORLANDO HENRY, JOSEPH
MARCELL RAY,

                     Defendants.
____________________________________________________________



       *
       Judge Andrew L. Carter, Jr., of the United States District Court for the Southern District
of New York, sitting by designation.
For Appellee:                        Robert M. Spector and Sandra S. Glover, Assistant United
                                     States Attorneys, for Deirdre M. Daly, Acting United States
                                     Attorney for the District of Connecticut, New Haven, C.T.

For Defendant-Appellant:             Frank J. Riccio, II, Law Office of Frank J. Riccio, LLC,
                                     Bridgeport, C.T.


          Appeal from the United States District Court for the District of Connecticut (Thompson,
J.).

          ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.


          Defendant-Appellant Jason Dantley Davis appeals from a November 26, 2012 amended

judgment imposed by the United States District Court for the District of Connecticut (Thompson,

J.) after he was convicted by a jury of one count of possession with intent to distribute five

grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

          This proceeding is the second appeal arising from Davis’s instant conviction. Davis

previously appealed a 240-month sentence imposed by the district court in 2008, which was

remanded in response to this Court’s intervening decision in United States v. Savage, 542 F.3d

959 (2d Cir. 2008). On remand, the district court considered the impact of both Savage and the

Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372, and imposed a

112-month sentence of imprisonment on Davis. Davis now appeals this second sentence. We

assume the parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

          On appeal, Davis first contends that the district court erred in designating him as a career

offender on two grounds: (1) that one of his two qualifying convictions—assault in the second

degree—is not categorically a crime of violence within the meaning of the United States

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Sentencing Guidelines (“Guidelines” or “U.S.S.G.”), and (2) that this conviction should not have

been considered as a qualifying conviction upon resentencing because doing so exceeded the

scope of the remand ordered by this Court.

       Davis contests the district court’s conclusion that assault in the second degree under

Connecticut General Statute § 53a-60 is a crime of violence within the meaning of U.S.S.G. §

4B1.2(a) because he asserts that the statute of conviction is over-inclusive—that is, it includes

both violent and non-violent felonies. Since the statute of conviction includes non-violent

felonies, he argues, the district court was not entitled to assume that Davis’s conviction was

based on the sections of the statute that penalize violent felonies. Even assuming arguendo that

Davis is correct that convictions under Connecticut General Statute § 53a-60 cannot be

considered categorically to be crimes of violence, the district court did not analyze the statute

categorically. Rather, it properly applied the modified categorical approach to determine that

Davis’s conviction constitutes a crime of violence. To determine whether Davis pleaded to a

subsection that criminalizes reckless or intentional conduct, the district court relied upon a

transcript of the plea colloquy, which shows that Davis admitted that he had intentionally

physically assaulted the victim by striking the victim in the back of the head with a glass bottle.

We see no basis for questioning the district court’s determination that the assault conviction was

based on one of the subsections that penalizes intentional assault, and that the conviction is

therefore a crime of violence.

       Davis next argues that, even if his second-degree assault conviction was a crime of

violence, the district court committed procedural error in relying on this conviction as a career

offender qualifier because, at his first sentencing, the government had neither relied on it nor

introduced into evidence the transcript of the guilty plea colloquy underlying that conviction. In

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Davis’s view, consideration of this prior offense was not within the scope of this court’s prior

remand, which directed the court only to reconsider Davis’s sentence “in light of Savage,”

United States v. Davis, 363 F.App’x 781, 786 (2d. Cir. 2010), and so the district court’s

consideration of an additional prior conviction to support a finding that he is career offender

violates the mandate rule.

       Under the mandate rule, when a case is remanded for resentencing on a particular issue,

the parties generally may not raise issues that had not previously been raised. See United States

v. Malki, 718 F.3d 178, 182 (2d Cir. 2013) (per curiam) (“[T]he ‘default rule’ is that the remand

is for limited, and not de novo, resentencing.”). However, this “presumption of limited

resentencing may be overcome if issues ‘bec[o]me relevant only after the initial appellate

review . . . .’” Id. (quoting United States v. Hernandez, 604 F.3d 48, 54 (2d Cir. 2010)); see also

United States v. Quintieri, 306 F.3d 1217, 1230 (2d Cir. 2002) (“[T]he district court may

consider issues made newly relevant by the court of appeals’ decision-whether by the reasoning

or by the result[.]” (internal quotation marks omitted)).

           Here, in his initial sentencing, Davis did not dispute that he was a career offender, so

the government had no need to rely upon the assault conviction or introduce the transcript from

Davis’s plea colloquy. It was not until Savage undermined the district court’s reliance on one of

Davis’s prior convictions that the prior assault conviction became relevant. Given the

government’s lack of incentive to litigate this issue at the original sentencing, its failure to raise

it at that point cannot be viewed as a waiver. See Quintieri, 306 F.3d at 1230 (“[A] failure to

make an argument at the original sentencing cannot be viewed as a waiver if that argument

would have then been purely academic[.]” (internal quotation marks omitted)). Nor was the

introduction of the plea colloquy transcript erroneous, as the district court may admit new

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evidence on remand “where special circumstances make the prohibition on new evidence

unfair.” United States v. Archer, 671 F.3d 149, 168 (2d Cir. 2011). As the procedural history of

this case makes clear, this is not a situation in which the government initially failed to carry its

burdens of production and persuasion and simply wants “a second bite at the apple.” See id.

(quoting United States v. Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995)). Consequently, the

fairness concerns animating Archer are not present here. Moreover, the government included the

plea transcript in its sentencing memorandum on remand, giving Davis an opportunity to respond

in his own defense. Given the facts of this case, we see no error in the district court’s

consideration of Davis’s assault conviction in finding that he qualifies as a career offender.

       Second, Davis argues that the district court erred in applying the“second offender”

sentencing enhancement pursuant to 21 U.S.C. §§ 841(b)(1)(C), 851, based on his 1999

conviction for drug possession. Because Connecticut General Statute § 21a-279(a) penalizes the

possession of some drugs that are not covered by 21 U.S.C. § 841(b)(1)(C), the district court

analyzed Davis’s 1999 conviction using the modified categorical approach, looking to the

transcript from the plea colloquy to determine that Davis was convicted for possession of crack

cocaine, which constitutes a “felony drug offense” under 21 U.S.C. § 841(b)(1)(C). See United

States v. Jackson, 59 F.3d 1421, 1422 (2d Cir. 1995) (per curiam) (reaffirming that crack cocaine

triggers the enhanced penalty provisions under 21 U.S.C. § 841(b)(1)).

       Challenging this finding on appeal, Davis contends that the district court erred by

concluding that his earlier conviction was a controlled substance offense based on his plea

because he recalls entering that plea under the Alford doctrine.1 Relying on this Court’s

       1
         See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual accused of crime
may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence
even if he is unwilling or unable to admit his participation in the acts constituting the crime.”)

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statement that “an Alford plea . . . does not confirm the factual basis for the plea,” Savage, 542

U.S. at 962, he argues that the plea he “recalls” entering under Alford cannot serve as proof that

his prior conviction involved crack cocaine. But, as he recognizes, the transcript does not give

any indication that Davis entered a plea of guilty under the Alford doctrine. On the contrary, it

shows that Davis pleaded guilty without any qualification, and specifically agreed that the facts,

as summarized by the prosecutor, were correct. Thus, there is no basis to find that the district

court erred, much less clearly erred, in concluding that the guilty plea confirmed the factual basis

for Davis’s plea. See Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (explaining

that, in applying the clear error standard, we must accept the district court’s factual findings if

they are “plausible in light of the record viewed in its entirety”(internal quotation marks

omitted)).

       Furthermore, Davis argues that “his statements made to the Court cannot constitute an

admission sufficient to satisfy the Court that such a conviction would apply for 851 purposes.”

Brief for Defendant-Appellant at 17. However, in its factual proffer, the prosecution explained

that Davis’s conviction was based on an incident in which the police:

               observed defendant drop a folded napkin to the ground. When the
               item hit the pavement it opened and a small plastic bag containing
               a white rock-like substance fell out of it. Police believed it to be
               crack cocaine. They seized it; they Val-tox tested it; it did give a
               positive reaction for cocaine.

J.A. 116-17. When asked directly if the facts summarized were correct, Davis replied “yeah.”

Id. 122. Thus, there is no reason to conclude that the admission in the plea colloquy is

insufficient to establish that the narcotic underlying the conviction was crack cocaine, which

triggers the enhanced penalty provisions under 21 U.S.C. § 841(b)(1), see Jackson, 59 F.3d at




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1422, or to conclude that the district court erred in determining that the admissions in the

transcript were sufficient to designate Davis as a second offender, see Anderson, 470 U.S. at 574.

       Finally, Davis contends that the district court abused its discretion by imposing a

substantively unreasonable sentence under the factors set forth in 18 U.S.C. § 3553(a).

Specifically, he argues that the district court did not consider his post-conviction rehabilitation

and the disparity in the Guidelines’ recommended sentences for possession of crack cocaine

versus possession of powder cocaine.

       This assertion is, however, belied by the record. The district court imposed a sentence of

112 months, which is less than half of the 262-month minimum term of imprisonment

recommended by the Guidelines. Before imposing this sentence, the district court went to great

lengths to make sure that the relevant factors—in particular the defendant’s post-conviction

rehabilitation—were incorporated into the Probation Office’s recommendation as well as its own

determination. At the sentencing hearing, the district court made it clear that it recognized that

Davis was a very different than he was at the initial sentencing in 2008, concluding that, because

of Davis’s rehabilitation, it no longer viewed Davis as the “type of individual for whom being

classified as a career offender is consistent with the purposes of sentencing.” J.A. 235.

However, the district court also explained that the need for just punishment and general

deterrence remained since “[Davis] is in Criminal History Category VI . . . even taking into

account the defendant’s explanation for certain offenses.” Id. 233. Thus, the transcript makes

clear that the district court considered Davis’s post-conviction rehabilitation and reduced his

sentence accordingly.

       Davis’s argument that the district court did not properly consider the disparity between

sentences for powder cocaine and those for crack cocaine is equally meritless. To be sure, we

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have allowed district courts to “impose a lighter sentence” if “the disparity between cocaine base

and cocaine powder offenses in the United States Sentencing Guidelines might result in a

sentence greater than necessary.” United States v. Keller, 539 F.3d 97, 98, 101 (2d Cir. 2008)

(brackets and internal quotation marks omitted). While we require that “[t]he record . . .

unambiguously demonstrate that the District Court was aware of its discretion to consider [the

potentially undue disparity],” we have not insisted that district courts reduce sentences on that

basis and have specifically disavowed imposing “formulaic requirements”on or requiring

“robotic incantations” of district courts in administering this duty. Id. at 98, 101 (internal

quotation marks omitted).

       In sentencing Davis, the district court clearly and explicitly recognized its authority to

take the disparity between sentences for powder cocaine and crack cocaine into account, but

simply declined to further reduce Davis’s sentence on that basis. That is all that is required.

Accordingly, we reject Davis’s substantive unreasonableness challenge to his sentence.

       We have considered the parties’ remaining arguments and we find them to be without

merit. For the reasons stated herein, the judgment imposed by the district court is AFFIRMED.

                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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