09-4114-cr
U nited States v. Davis



                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM MARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 6 th day of October, two thousand ten.

PRESENT:                  ROGER J. MINER,
                          BARRINGTON D. PARKER,
                          REENA RAGGI,
                                    Circuit Judges.

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UNITED STATES OF AMERICA,
                        Appellee,
               v.                                                                      No. 09-4114-cr

CHRISTOPHER LISTON DAVIS, a.k.a
Robert Alan Smith,
                        Defendant-Appellant.
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FOR APPELLANT:                         George Baird, Assistant Federal Public Defender, for Alexander
                                       Bunin, Federal Public Defender, Albany, New York.

FOR APPELLEE:                          Elizabeth S. Riker, Assistant United States Attorney (Elizabeth
                                       A. Horsman, Assistant United States Attorney, on the brief), for
                                       Richard S. Hartunian, United States Attorney for the Northern
                                       District of New York, Syracuse, New York.

           Appeal from the United States District Court for the Northern District of New York

(Glenn T. Suddaby, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on October 1, 2009, is AFFIRMED.

       Defendant Christopher Liston Davis is presently incarcerated, serving concurrent 57-

month prison terms imposed after a guilty plea to one count of attempted illegal reentry after

deportation subsequent to an aggravated felony conviction, see 8 U.S.C. § 1326(a)-(b), and

one count of using a fraudulently obtained passport, see 18 U.S.C. § 1542. Davis appeals

from only that part of his judgment of conviction imposing a $7,500 fine. We review a

sentence, including a fine, for reasonableness, a standard akin to review for abuse of

discretion. See Kimbrough v. United States, 552 U.S. 85, 90-91 (2007); United States v.

Cavera, 550 F.3d 180, 187-88 & n.5 (2d Cir. 2008) (en banc). In doing so, we assume the

parties’ familiarity with the facts and record of prior proceedings, which we reference only

as necessary to explain our decision to affirm.

       1.     Ability to Pay

       Davis does not dispute the district court’s authority to impose a fine for the crimes of

conviction. See 8 U.S.C. § 1326(b); 18 U.S.C. § 3571(a). He further acknowledges that the

challenged fine represents the bottom of the applicable Sentencing Guidelines range of

$7,500 to $75,000. Davis maintains that the district court committed procedural error in

finding, contrary to the presentence report (“PSR”), that he was able to pay such a fine. We

review this factual finding for clear error. See United States v. Awan, 607 F.3d 306, 312 (2d

Cir. 2010); United States v. Cavera, 550 F.3d at 190.



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       The district court determined that Davis could afford to pay a fine because he (1)

jointly owned an unencumbered home worth $65,000; (2) owned two vehicles worth $3,500

and $6,000; and (3) was able to “be productive and produce money to pay a fine.”

Sentencing Tr. at 18. We identify no clear error in this determination. Although Davis

argues that the government erred in asserting that he would be eligible for prison

employment, the district court did not rely on this representation in making its own finding.

Further, the potential difficulty in liquidating Davis’s property in Jamaica, which informed

the PSR’s recommendation against imposition of a fine, did not preclude the district court

from finding that Davis had assets that he could draw on to pay a fine.1

       2.     Reference to Appointed Counsel

       Davis asserts that the district court committed further procedural error by treating his

representation by appointed counsel as a factor weighing in favor of, rather than against,

imposition of a fine. See U.S.S.G. § 5E1.2 cmt. n.3 (stating that defendant’s representation

by assigned counsel is generally a significant factor weighing against fine). We are not

persuaded. Although district courts are no longer bound to follow the Guidelines or



       1
          United States v. Gonzalez, 541 F.3d 1250 (11th Cir. 2008), relied on by Davis,
warrants no different conclusion. There, the Eleventh Circuit vacated a $250,000 fine,
several multiples above the $60,000 top of the Guidelines range, imposed without
explanation on a defendant whom the presentence investigation report indicated could not
pay both a fine and mandatory restitution of $116,300. See id. at 1256. By contrast, the
district court here made reasonable findings regarding Davis’s assets and capacity for future
earnings before imposing a fine at the bottom of the applicable Guidelines range. On this
record, we identify no deficiency of explanation requiring remand. See United States v.
Cavera, 550 F.3d at 190.

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Guidelines commentary with which they disagree, see United States v. Kimbrough, 552 U.S.

at 101, we do not, in fact, understand the district court to have expressed any categorical

disagreement with the cited commentary in this case. In context, the challenged statement

appears only to explain that, in light of other indicators that Davis had significant assets with

which to pay a fine, the district court was not prepared to waive a fine, thereby depriving

taxpayers, who had already incurred expenses in connection with Davis’s prosecution, of a

contemplated monetary penalty. This is consistent with § 5E1.2(a), which mandates “a fine

in all cases, except where the defendant establishes that he is unable to pay and is not likely

to become able to pay any fine.” See U.S.S.G.§ 5E1.2(a).

       3.     Consideration of Statutory Factors

       Davis contends that the district court failed adequately to consider and weigh the

relevant statutory and Guidelines factors, see 18 U.S.C. § 3572(a); U.S.S.G. § 5E1.2(d),

before imposing a fine, see United States v. Rattoballi, 452 F.3d 127, 139 (2d Cir. 2006).

Specifically, Davis faults the district court for not considering the impact of the fine on his

current wife, who remained in the United States while he was in Jamaica, and his three

children, two of whom are no longer minors. See 18 U.S.C. § 3572(a)(2); U.S.S.G.

§ 5E1.2(d)(3).

       In fact, the district court acknowledged Davis’s assertion that his wife’s Florida home

was in foreclosure and that he had three children. Nevertheless, it determined that these facts

did not warrant waiver of a fine because Davis had neither taken steps while in Jamaica to

assist his wife financially nor adduced any evidence that he was paying or obligated to pay

                                               4
child support. To the extent Davis asserts that the district court erred by not specifically

discussing “other pertinent equitable considerations,” U.S.S.G. § 5E1.2(d)(8), we have

disavowed any “formulaic requirement[]” for “robotic incantations” by district judges

regarding each sentencing factor, United States v. Keller, 539 F.3d 97, 101 (2d Cir. 2008)

(internal quotation marks omitted). The record in this case provides no reason to question

the presumption that a district judge has considered all pertinent factors. See United States

v. Legros, 529 F.3d 470, 478 (2d Cir. 2008).2

       Indeed, the district court identified “the nature and circumstances of the offense and

the history and characteristics of the defendant,” see 18 U.S.C. § 3553(a)(1); the need to

promote respect for law and provide appropriate punishment, see id. § 3553(a)(2)(A); the

need to afford adequate deterrence, see id. § 3553(a)(2)(B); and the cost to the government

of imprisoning Davis for repeated illegal reentry, see id. § 3572(a)(6), as factors weighing

in favor of imposing a fine even if Davis’s family circumstances might have weighed against

it. To the extent Davis challenges the weight assigned to these factors, we will “set aside a

district court’s substantive determination only in exceptional cases where the trial court’s

decision cannot be located within the range of permissible decisions.” United States v.



       2
        United States v. Drinkwine, 133 F.3d 203 (2d Cir. 1998), on which Davis relies, is
not to the contrary. There, the imposition of a $50,000 fine on an indigent defendant
suggested that the district court did not adequately consider the needs of defendant’s son, of
whom defendant had custody and for whom he was directed to pay child support. See id. at
205. Here, by contrast, the district court made specific findings regarding Davis’s assets,
which could be used to pay a more modest fine of $7,500, and Davis adduced no evidence
that he was required to support or actually supporting his putative dependents.

                                              5
Cavera, 550 F.3d at 189 (emphasis in original) (internal quotation marks omitted). This is

not such a case. Given Davis’s long history of criminal conduct – including drug trafficking,

parole violations, and fraudulent procurement and use of identification documents – the

challenged fine was not substantively unreasonable.

       We have considered Davis’s other arguments on appeal and conclude that they lack

merit. Accordingly, we AFFIRM the October 1, 2009 judgment of the district court.

                            FOR THE COURT:
                            CATHERINE O’HAGAN WOLFE, Clerk of Court




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