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


3-31-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3779




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 06-3779
                                      ____________

                           UNITED STATES OF AMERICA

                                             v.

                                 MAURICE T. DAVIS,

                                             Appellant
                                      ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 05-cr-00454-3)
                       District Judge: Honorable J. Curtis Joyner
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    March 4, 2008

          Before: SCIRICA, Chief Judge, FISHER and ROTH, Circuit Judges.

                                 (Filed: March 31, 2008)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Maurice Davis appeals his sentence of 240 months imprisonment on the basis that

the sentence that the District Court imposed on him was unreasonable. Pursuant to a plea

agreement, Davis pleaded guilty to one count of conspiracy to interfere with interstate
commerce by robbery and two counts of interference with interstate commerce by

robbery, in violation of 18 U.S.C. § 1951(a), and one count of using and carrying a

firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). For the

reasons that follow, we will affirm the judgment of the District Court.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       In December 2004, Davis and two co-defendants developed a plan to rob a Sally

Beauty Supply store in Philadelphia. On December 23, 2004, the men drove to the store

and Davis’ two co-defendants robbed it at gunpoint while Davis remained in the car. The

three men then proceeded to rob a Sunoco store. While one of his co-defendants pointed

a loaded gun at the clerk, Davis emptied the cash register. A high speed police chase

ultimately ensued during which Davis sat in the back seat and acted as navigator. The

robbers eventually struck another vehicle and crashed into a median. The police

apprehended the three men and recovered the gun and some of the stolen money.

       A federal grand jury indicted the three men for conspiracy and robbery, subjecting

them to a maximum possible sentence of 20 years. Davis and his co-defendants were also

charged with two counts of using and carrying a firearm during a crime of violence, a

violation carrying a maximum sentence of life imprisonment, as well as a mandatory



                                              2
minimum sentence of seven years, consecutive to any other sentence imposed. 18 U.S.C.

§ 924(c)(1)(A). Moreover, if convicted on both counts of violating § 924(c)(1)(A), each

defendant could receive an additional twenty-five years mandatory consecutive

incarceration.

       All three defendants agreed to plead guilty to the conspiracy count, the two

robbery counts and one count for violation of 18 U.S.C. § 924(c)(1)(A). In exchange for

these guilty pleas, the government agreed to dismiss the other § 924(c)(1)(A) count.

Davis’ plea agreement also included sentencing stipulations which, pursuant to the United

States Sentencing Guidelines Manual, included the following: that a firearm was

brandished during each of the offenses; that Davis recklessly created a substantial risk of

death or serious bodily injury to another person in the course of fleeing from a law

enforcement officer; and, that due to his prior felony convictions, Davis was a career

offender. In addition, Davis’ plea agreement contained an appellate waiver.1




       1
        Pursuant to the plea agreement, Davis waived, with limited exceptions, his right to
a direct appeal of his conviction or sentence to this Court. Under his agreement with the
Government, Davis may only file a direct appeal if it raises one or more of the following
claims: (1) his sentence on any count of conviction exceeds the statutory maximum
sentence; (2) the court erroneously departed upward pursuant to the Sentencing
Guidelines; or (3) the sentencing judge, in exercising the court's discretion pursuant to
United States v. Booker, 543 U.S. 220 (2005), imposed an unreasonable sentence above
the final Sentencing Guidelines range determined by the court. As the District Court
(1) imposed a sentence below the statutory maximum, (2) did not depart upward, and
(3) imposed a sentence below the calculated Guidelines range, none of these exceptions
apply here.

                                             3
       Prior to accepting Davis’ guilty plea, the District Court reviewed the plea

agreement with him in order to ensure that he was entering the plea knowingly and

intelligently. Davis admitted that he aided in the preparation for the robbery,

accompanied his co-defendants to the Sally Beauty Supply store, and was aware that the

robbery was going to take place there and that a gun would be brandished during the

robbery. In addition, Davis admitted that he helped prepare for, and participated in, the

Sunoco store robbery, where a gun was also brandished. On December 20, 2005,

following its colloquy, the District Court accepted Davis’ plea, finding it to be knowing,

voluntary, and supported by a factual basis.

       The Presentence Investigation Report prepared by the Probation Office included

the sentencing enhancements set forth in Davis’ Guilty Plea Agreement, and calculated a

sentencing range of 262 to 327 months based on the advisory United States Sentencing

Guidelines. The District Court agreed with this range and found that it was properly

calculated. However, because the District Court found that the Guidelines calculation

somewhat overstated the criminal history of the defendant, the District Court imposed a

below Guidelines range sentence of 240 months.

                                               II.

       We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

Furthermore, we have jurisdiction over appeals, even where, as here, the defendant has

waived his right to appeal. United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007).



                                               4
However, “we will not exercise that jurisdiction to review the merits of [such an appeal]

if we conclude that [the defendant] knowingly and voluntarily waived h[is] right to appeal

unless the result would work a miscarriage of justice.” Id. Because Davis entered a

guilty plea that enumerated the specific issues that he may appeal, the issues he may raise

are limited to those contained in the guilty plea.

                                             III.

       Davis’ appeal challenges the reasonableness of his sentence. However, because

his plea agreement contained an appellate waiver, we can only review the merits of his

claim if his plea was not knowing and voluntary, or if enforcing the waiver would work a

miscarriage of justice. See United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001).

For the plea agreement to be knowing and voluntary, it must meet both the statutory

requirements of Federal Rule of Criminal Procedure 11 (“Rule 11”) and the constitutional

requirements of Boykin v. Alabama, 395 U.S. 238 (1969). Accordingly, before accepting

a guilty plea, the Court must address the defendant personally in open court and ensure

that the defendant understands the terms of any provision in a plea agreement waiving the

right to appeal or to collaterally attack the sentence. See Rule 11(c)(6). A review of the

plea agreement proceedings establishes that through an extensive colloquy, the District

Court properly questioned and advised Davis of his rights, took affirmative steps “to

ensure that the plea was intelligent and voluntary,” and ascertained the factual basis for




                                              5
the plea pursuant to Boykin and Rule 11. See Boykin, 395 U.S. at 242. Thus, Davis’ plea,

including his appellate waiver, was knowing and voluntary.

       We may also consider the merits of Davis’ appeal if enforcing his waiver would

work a miscarriage of justice. See Khattak, 273 F.3d at 563. We have adopted factors to

consider in determining whether a miscarriage of justice occurred during the District

Court proceedings, including “[t]he clarity of the error, its gravity, its character (e.g.,

whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the

impact of the error on the defendant, the impact of correcting the error on the

government, and the extent to which the defendant acquiesced in the result.” Id.

       Here, Davis claims that it would work a miscarriage of justice to enforce the

waiver because his sentence was unreasonable. In making this charge, he specifically

challenges the sentencing enhancements for (1) brandishing a firearm and (2) reckless

behavior in the course of fleeing from law enforcement officers. However, Davis not

only stipulated to these factors in his plea agreement, but also raised no objection to them

when questioned by the District Court regarding the factual basis for these stipulations.

In addition, because Davis was sentenced as a career offender, convicted for violation of

18 U.S.C. § 924(c), and received a three-level credit for acceptance of responsibility, he

automatically qualified for a Guidelines range of 262-327 under U.S.S.G. § 4B1.1(c)(3),

meaning that the two enhancements about which he complains actually had no impact on

the final calculated Guidelines range. Regardless, there is no indication that the District



                                               6
Court’s sentence is unreasonable. A sentence is considered reasonable if “the record as a

whole reflects rational and meaningful consideration of the factors enumerated in 18

U.S.C. § 3553(a).” United States v. Grier, 449 F.3d 558, 574 (3d Cir. 2006). The District

Court properly discussed and weighed those factors during sentencing, even discounting

one the stipulations regarding his criminal history. Based on the above, and the fact that

nothing unusual or extraordinary occurred below, enforcement of the appellate waiver

would not work a miscarriage of justice. Accordingly, we decline to exercise jurisdiction

to review the merits of the appeal. Gwinnett, 483 F.3d at 203.

                                            IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                             7
