                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0724n.06

                                            No. 11-3472
                                                                                         FILED
                           UNITED STATES COURT OF APPEALS                            Aug 06, 2013
                                FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                              )
                                                       )       ON APPEAL FROM THE UNITED
       Plaintiff-Appellee,                             )       STATES DISTRICT COURT FOR
                                                       )       THE NORTHERN DISTRICT OF
v.                                                     )       OHIO
                                                       )
DWAYNE A. DAVIS, JR.,                                  )
                                                       )       AMENDED OPINION
       Defendant-Appellant.                            )
                                                       )



Before: MOORE, SUTTON, and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. In the early morning hours of October 7,

2008, two bodies were found on West Grand Boulevard in Detroit. The victims had been shot in the

head, with their money and cell phones taken from them.

       But this was no unresolved murder-mystery whodunit. An investigation revealed that

Dwayne Davis, Jr. concocted and executed a plan to exact vengeance for a drug deal gone awry. A

jury convicted him of traveling interstate to further an unlawful enterprise in violation of 18 U.S.C.

§ 1952(a)(2)(B); using a firearm to commit murder during and in relation to a crime of violence in

violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(j); and tampering with evidence in violation of 18

U.S.C. § 1512(c)(1).

       Davis now appeals his convictions and sentence, asserting that (1) the district court

improperly denied his motion to suppress; (2) the district court erred by failing to dismiss the case
No. 11-3472
United States v. Davis

on improper venue grounds; (3) the district court erred by failing to issue a jury instruction on the

lesser-included offense of second-degree murder; (4) a life sentence for a mentally-disabled homicide

offender violates the Cruel and Unusual Punishments Clause of the Eighth Amendment; and (5) the

evidence is insufficient to sustain his convictions. We are unpersuaded by his arguments and

therefore AFFIRM his convictions and sentence.

                                                 I.

       A.      The Murder

       In September 2008, Dwayne Davis contacted Robert Susko, asking him to procure some

cocaine for Davis to sell. The two knew each other through Tracy Hart, Davis’ girlfriend and

Susko’s colleague. To fulfill Davis’ request, Susko turned to Paul Gonzalez; once Susko and

Gonzalez had the product in hand, the two delivered the goods to Davis. Davis, in turn, sold the

cocaine to Tim Smith.

       Smith, however, was not happy with the quality of the product. When Davis complained to

Susko and Gonzalez, Gonzalez indicated that there would be no reimbursement. Davis later told

Smith, “No one rips me off, I’ll kill those guys, no one plays me like a sucker.”

       True to his vow, Davis hatched a plan to lure his two associates to Michigan to kill them.

On October 6, 2008, he successfully convinced Susko to go with him from Cleveland to Detroit on

a quest to buy marijuana; Gonzalez, however, declined the invitation to join them.

       Susko and Davis, the two would-be traffickers, needed a driver. They found their man in

David Miller—a friend of Susko’s—who agreed to drive the trio to Detroit in exchange for gas and



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United States v. Davis

marijuana. On his way out of the house, Miller told his mother that he was going to Detroit to

gamble.

       Cell tower records revealed the group’s journey across state lines. Susko’s last call was made

in Detroit at 11:04 PM, near the place where he and Miller were later found dead. Shortly therafter,

Davis exchanged a series of twenty phone calls with an associate, Demetrious Ross. Davis asked

Ross to pick him up from the MGM Grand Casino in Detroit. Ross agreed, and began his trek to

Michigan.

       On his way there, Ross received a suspicious call: the number belonged to Susko, but Davis’

voice was on the other line. Ross decided to turn back and returned to Cleveland. Davis, now in

need of a ride home, used Susko’s phone to call another acquaintance, Masur Yaar, to arrange

transport from Detroit. Yaar, fast asleep, did not pick up, and Davis left a voicemail in which the

sounds of a casino could be heard.

       At approximately 4:11 a.m. the next morning, the Detroit Police Department received an

emergency call reporting that two bodies were found on the street: that of Susko and Miller. Police

officers found a bullet in each victim’s head. Forensic analysis revealed that the bullets—one found

in Miller’s head and the other in Susko’s mouth—were fired from the same gun. An autopsy

concluded that the men had been killed execution style. No money or cell phones were found on

either corpse.

       Later that day, at some time between noon and two in the afternoon, Devon Vales—one of

Davis’ customers—visited Davis’ home. Davis asked Vales to help him dispose of Miller’s vehicle.

The two drove over in separate cars to a nearby park, with Davis driving Miller’s car and Vales

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United States v. Davis

following closely behind. Once they arrived, Davis exited Miller’s car, got into Vales’, and unzipped

his jacket. In doing so, Davis revealed a bloodied shirt.

        Vales drove to a nearby gas station. Davis bought gasoline and placed it in a container,

returned to Miller’s vehicle, poured the gasoline on the car, and lit it ablaze. He later explained the

entire plot and its motive to Vales, describing the killing itself with vivid detail. The charred remains

of Miller’s car were eventually recovered by Cleveland police. Blood samples found in the vehicle

were matched to Susko and Miller.

        A couple of days later, Davis met Ross at a bar. When the two overheard chatter about Susko

and Miller’s deaths, Davis boasted to Ross, “I told you I was going to get them.” At Ross’ behest,

Davis recounted the events. Davis repeated the story to others, including two of his customers and

his girlfriend.

        B.        The Confession

        We now skip ahead to November 20, 2009. At the time, Davis was incarcerated in a state

penitentiary for an unrelated firearms violation. Agent Burke of the FBI was looking for Davis so

that he could execute an active federal arrest warrant for carjacking. Davis was escorted from the

prison’s confines to a squad car, where Burke read Davis his Miranda rights from a standard form.

Detective Toth of the Westlake Police Department accompanied the two to the local police station.

Davis was then processed and led into a conference room; once situated, he received another set of

standard-form Miranda warnings.




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        Agent Burke testified that Davis willingly confessed to the events that led to the deaths of

Miller and Susko. According to Burke, he reduced the confession to writing, explained and read the

draft to Davis, allowed Davis to make changes, and had Davis sign the written confession.

        In an evidentiary hearing, Davis told a different story. He testified that, after Burke and Toth

explained the evidence against him, he “just shut them down” and invoked his right to counsel by

asking, “Well, when would I be able to see my attorney, like when would I be able to talk to my

attorney?” Burke purportedly responded, “Well, Mr. Davis, you’re not cooperating, you’re not

helping yourself. You really need to help yourself.” Davis continued his protest, exclaiming “What

did I do wrong? How can I help myself when I don’t know nothing? You’re all basically telling me

to talk to you all about things I don’t even know.”

        In this version of recollected events, Burke then informed Davis that an attorney would not

be available until the next weekday. The two agents stopped their questioning and provided Davis

with dinner and medication. Afterwards, Burke and Toth resumed their session. They asked probing

questions about Davis’ health and sought to acquire background information that Davis described

as “orient type stuff, like how you get processed to jail.” Davis testified that he “never got

questioned throughout the whole interrogation. Not once did [he] ever get questioned, honest to God

truth.” According to him, he only signed the written confession because it was presented as a

protective measure; Davis allegedly had no understanding that the statement was indeed a

confession. Had he understood the written document as such, Davis asserted, he “would never have

signed it.”



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United States v. Davis

       C.      The Courtroom

       We now channel our focus to the events of the courtroom. A federal grand jury seated in the

Northern District of Ohio returned an indictment against Davis, charging him with one count of

traveling interstate to commit a crime of violence to further an unlawful activity in violation of 18

U.S.C. § 1952(a)(2)(B) (“The Travel Act”); one count of knowingly using and carrying a firearm

during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(j);

and one count of tampering with evidence in violation of 18 U.S.C. § 1512(c)(1).

       Davis filed a motion to suppress his confession on the grounds that Agent Burke continued

interrogating him despite his invocation of the Miranda-based right to counsel. He also filed a

motion to dismiss the case for improper venue, asserting that Michigan—the scene of the

murder—was the proper location for trial.

       The trial court denied the motion to suppress on the grounds that Davis validly waived his

right to counsel and, in doing so, credited Burke and Toth’s testimony over Davis’. It also denied

the venue motion, finding sufficient the Government’s representations that some of the elements of

the charged crimes occurred in Ohio.

       Davis also moved for a jury instruction on the lesser-included offense of second-degree

murder. The district court denied that motion as well, explaining that “[f]rom the state of the

evidence,” the court could not discern the lesser-included offense because “certain evidence was not

presented.”

       After a five-day trial, the jury returned a guilty verdict against Davis on all counts. The court

sentenced Davis to life imprisonment. Davis timely appealed.

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United States v. Davis

                                                  II.

        The appellant raises five arguments on appeal. He assigns error to (1) the district court’s

denial of his motion to suppress his confession; (2) its denial of his venue motion; and (3) its denial

of his request for a jury instruction on the lesser-included offense of second-degree murder. He also

challenges the sufficiency of the evidence and the constitutionality of his sentence.

                                                  A.

        We review a district court’s decision to deny a motion to suppress under a dual standard:

findings of fact are reviewed for clear error, while legal conclusions are reviewed de novo. United

States v. Cochrane, 702 F.3d 334, 340 (6th Cir. 2012). Even if we discern error, we need not reverse

if the error is harmless. See United States v. Garcia, 496 F.3d 495, 512 (6th Cir. 2007).

        Davis first challenges the district court’s denial of his motion to suppress an inculpatory

statement he made to Agent Burke. Typically, “the remedy for a Miranda violation is to exclude the

tainted statement.” United States v. Sanders, 472 F. App’x 376, 381 (6th Cir. 2012) (citing Miranda

v. Arizona, 384 U.S. 436, 492 (1966)). But here, we have nothing to exclude and therefore no

remedy to grant: Davis’ statement was never admitted into evidence at trial. Therefore, we consider

Davis’ challenge moot. See United States v. Trinh, 665 F.3d 1, 17 (1st Cir. 2011).

                                                  B.

        We are similarly unmoved by Davis’ venue argument. While we conduct de novo review of

a district court’s interpretation of a venue statute, we review its overarching decision to deny a venue

motion for abuse of discretion. See United States v. Jordan, Nos. 11-6143, 11-6084, 2013 WL

163969, at *8 (6th Cir. Jan. 16, 2013) (quoting Kerobo v. Sw. Clean Fuels Corp., 285 F.3d 531, 533

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United States v. Davis

(6th Cir. 2002)). Section 3237 of Title 18 provides that “any offense against the United States begun

in one district and completed in another, or committed in more than one district, may be inquired of

and prosecuted in any district in which such offense was begun, continued, or completed.” Venue

is appropriate in the federal district where “the conduct comprising the essential elements of the

offense occurred.” United States v. Wood, 364 F.3d 704, 710 (6th Cir. 2004). Put differently, venue

is proper in all locations in which the acts constituting a particular crime took place. Id. (quoting

United States v. Cabrales, 524 U.S. 1, 6-7 (1998)).

        For purposes of the Travel Act, 18 U.S.C. § 1952(a), “venue lies in any district in which the

travel occurred, including the district in which it originated, even if intermediate destinations were

involved.” United States v. Burns, 990 F.2d 1426, 1436-37 (4th Cir. 1993) (citations omitted). In

this case, Davis crossed state lines from Ohio to Michigan with the intent to commit a crime of

violence: murder. See 18 U.S.C. § 1952(a)(2) (2006) (“Whoever travels in interstate . . . commerce

. . . with intent to . . . commit any crime of violence to further any unlawful activity.”). The fact that

he started his journey from Cleveland makes the Northern District of Ohio a proper venue for

prosecution under the Travel Act. See Burns, 990 F.2d at 1436-37.

        As for the firearm-use charge, Davis seems to suggest that the location in which the

underlying crime of violence was completed is the only proper venue for prosecution. Our precedent

says otherwise. “Where venue is appropriate for the underlying crime of violence, so too it is for the

§ 924(c)(1) offense.” United States v. Rodriguez-Moreno, 526 U.S. 275, 282 (1999). Here, venue

for the underlying crime of violence—murder as defined by 18 U.S.C. § 1111—is proper in the

Northern District of Ohio because Davis hatched his plot and executed parts of it in Cleveland. The

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United States v. Davis

fact that Davis completed the homicidal act in Michigan is of no matter; premeditation is an essential

element of first-degree murder, and it is an essential element that occurred in the Northern District

of Ohio. See 18 U.S.C. § 1111(a) (“ . . . any other kind of willful, deliberate, malicious, and

premeditated killing . . . is murder in the first degree.”). Accordingly, we conclude that the

Government prosecuted Davis in an appropriate venue.

                                                  C.

       Turning to the district court’s denial of Davis’ proposed jury instruction, we see no availing

argument there, either. We review a district court’s denial of a properly-made request for a jury

instruction on a lesser-included offense for an abuse of discretion. United States v. LaPointe, 690

F.3d 434, 439 (6th Cir. 2012). Four considerations guide our inquiry as to whether a district court

properly denied a particular instruction. We examine whether

       (1) a proper request is made; (2) the elements of the lesser offense are identical to
       part of the elements of the greater offense; (3) the evidence would support a
       conviction on the lesser offense; and (4) the proof on the element or elements
       differentiating the two crimes is sufficiently disputed so that a jury could consistently
       acquit on the greater offense and convict on the lesser.


United States v. Colon, 268 F.3d 367, 373 (6th Cir. 2001) (citing United States v. Monger, 185 F.3d

574, 576 (6th Cir. 1999)). To succeed under this test, a defendant must show that “(1) the elements

of the lesser offense are a subset of the elements of the charged offense; and (2) the evidence would

allow a rational jury to find the defendant guilty of the lesser offense but not guilty of the charged

offense.” United States v. Waldon, 206 F.3d 597, 604-05 (6th Cir. 2000).




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United States v. Davis

        Davis’ proposed jury instruction was derived from a jury instruction we examined in United

States v. Garcia-Meza, 403 F.3d 364 (6th Cir. 2005). It reads as follows:

        To kill with malice aforethought means, with respect to second degree murder either
        killing another person deliberately and intentionally or to act with a callous and
        wanton disregard for human life. A callous and wanton disregard means
        recklessness, evidencing an extreme disregard for human life. To find malice
        aforethought, you need not be convinced that the defendant hated the person or felt
        ill will toward the victim at the time.

Id. at 371.

        As Davis properly raised his request for this instruction, we begin with the second Colon

factor: whether the elements of the lesser-included offense are identical to part of the elements of

the greater one. All federally-cognizable murders require proof of malice aforethought. See 18

U.S.C. § 1111(a) (2006); see also United States v. Milton, 27 F.3d 203, 206 (6th Cir. 1994)

(observing that the “malice aforethought” requirement extends to second-degree murder). Unlike

first-degree murder, however, second-degree murder is a crime of exclusion: it is every type of

murder that falls outside of the circumstances enumerated in the statute. See 18 U.S.C. § 1111(a)

(“Any other murder is murder in the second degree.”). But so long as there is an “unlawful killing

of a human being with malice aforethought,” the crime of murder has occurred. As both offenses

have this requirement in common, the second Colon question is satisfied: the elements of second-

degree murder are identical to part of the elements for murder in the first degree.

        The differentiating element, however, is premeditation. It is here that Davis’ claim fails.

There was sufficient evidence to prove Davis’ motive, planning, and claim of responsibility for the

killings—all key ingredients in the recipe for premeditation. As our sufficiency review below


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United States v. Davis

suggests, the evidence supporting premeditation was so ample that no rational jury could find him

guilty of second-degree murder but not guilty of murder in the first degree. Given this conclusion,

the district court did not err in declining to issue Davis’ proposed jury instruction.

                                                  D.

       We now address the heart of the case against Davis: whether sufficient evidence supported

the jury’s verdict. In reviewing Davis’ sufficiency challenge, we are tasked with examining the

evidence in the light most favorable to the Government, and in doing so, must draw all inferences

in its favor. United States v. Gibbs, 182 F.3d 408, 419 (6th Cir. 1999). In conducting this inquiry,

we ask whether “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Amawi, 695 F.3d 457, 475 (6th Cir. 2012) (quoting

United States v. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002)).

       Davis picks small nits with the Government’s case. He makes three arguments in particular:

first, the Government’s timeline for the murder was unrealistic; second, those who testified against

him were biased and received favorable treatment from the Government in exchange for their

testimony; and finally, the Government failed to explain why Davis would commit the crime in

Michigan, when it was just as convenient to do so in Ohio. These contentions, however, fail to

acknowledge the bigger picture.

       The Government proved a pre-existing, narcotics-based relationship between the defendant

and one of the victims, Susko. It then showed a motive for the killings that arose from this

relationship: Susko and a companion had sold Davis a bad batch of cocaine. Witnesses testified that

Davis later expressed his intent to seek retaliation for the botched drug deal, developing a scheme

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No. 11-3472
United States v. Davis

for executing such retaliation. Other witnesses attested to the fact that Miller traveled with Susko

and Davis to Detroit. Phone records proved Susko’s communication with Davis, as well as the trio’s

travel from Ohio to Michigan.

       Miller and Susko were later found dead in Detroit, having been killed execution-style.

Adding to the evidentiary heap, several witnesses testified that Davis discussed the crime with

associates, customers, and even his girlfriend. Perhaps the most damning of all was Davis’ attempt

to conceal the murder by burning Miller’s car, which contained blood samples traceable to the two

victims he allegedly killed. This last fact was enough to find Davis guilty of an entirely separate

crime—that of evidence tampering.

       With the evidence provided by the Government and the reasonable inferences drawn

therefrom, a rational jury could have found that the elements of first-degree murder were

demonstrated here beyond a reasonable doubt. As for Davis’ attempt to cast aspersions on the

witnesses who testified against him, we are “bound to make all . . . credibility choices in support of

the jury’s verdict.” United States v. Springer, 609 F.3d 885, 891 (6th Cir. 2010) (quoting United

States v. Hughes, 895 F.2d 1135, 1140 (6th Cir. 1990)). It was the jury’s prerogative to credit the

testimony of the Government’s witnesses; therefore, in this regard and on the whole, Davis’

challenge to the sufficiency of the evidence fails.

                                                 E.

       Finally, we turn to Davis’ sentence. He contends the district court’s decision to sentence him

to life imprisonment violates the Cruel and Unusual Punishments Clause of the Eighth Amendment.

In support of his argument, he turns to the Supreme Court’s decisions in Miller v. Alabama, 132 S.

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United States v. Davis

Ct. 2455 (2012) and Atkins v. Virginia, 536 U.S. 304 (2002). He claims that the two cases, read

together, suggest that “those with limited intellectual capacity cannot be subjected to the harshest

penalties our society imposes,” including the life imprisonment imposed upon him.

       Davis asks us to engage in Eighth-Amendment alchemy by melding Miller and Atkins

together to fashion some sort of alloyed caselaw that would shield him from a life sentence. We

decline Davis’ invitation to do so. Miller and Atkins had separate penological underpinnings. Miller

and its predecessor, Graham v. Florida, 130 S. Ct. 2011 (2010), largely honed in on the tension

between the penological rationale of rehabilitation and the impossibility of achieving such a rationale

in a life-without-parole scenario for juveniles. See Miller, 132 S. Ct. at 2645. Atkins, on the other

hand, focused on a mentally-disabled offender’s diminished capacity and the corresponding

diminution of culpability. See Atkins, 536 U.S. at 318. The two cases were motivated by different

justifications and thus are incompatible for any sort of constitutional hybridization.

       In short, Davis is not a juvenile, which precludes him from invoking Miller to ward off life

imprisonment. Atkins is also of no avail, as it is apposite only when a mentally-disabled offender

is sentenced to die, for “death is simply different.” See United States v. Moore, 643 F.3d 451, 455

(6th Cir. 2011). Consequently, we discern no valid constitutional basis for vacating Davis’ life

sentence.

                                                 III.

       For the reasons set forth above, we AFFIRM Davis’ convictions and sentence.




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United States v. Davis

       KAREN NELSON MOORE, Circuit Judge, concurring. I concur in the majority’s

opinion, except for its discussion of Davis’s sentence. Although I agree that Davis’s sentence does

not violate the Eighth Amendment, I base my conclusion on different legal grounds. Miller v.

Alabama held that a mandatory life-without-parole sentence is unconstitutional as applied to

juveniles. 132 S. Ct. 2455, 2469 (2012). The problem with the mandatory sentencing schemes in

Miller was that they “prevent[ed] the sentencer from taking account of” the considerations that make

juveniles “‘less deserving of the most severe punishments,’” including their “diminished culpability

and greater prospects for reform.” Id. at 2466, 2464 (quoting Graham v. Florida, 130 S. Ct. 2011,

2026 (2010)). In this case, even if Miller were extended to apply to other categories of offenders

with diminished culpability—for example, mentally retarded defendants, see Atkins v. Virginia, 536

U.S. 304 (2002)—Davis received exactly the kind of individualized consideration required by Miller.

He did not face a mandatory life sentence, and the district court explicitly took into account his

cognitive impairments when fashioning an appropriate sentence. See R. 129 (Sent. Hr’g Tr. at

12–15) (Page ID #1314–17). Accordingly, I agree that Davis’s sentence should be affirmed.




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