                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2154




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                                                         NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                            ________________

                                  No. 06-2154
                               ________________


                        UNITED STATES OF AMERICA

                                        v.

                                 BRIAN DAVIS,

                                         Appellant
                               ________________

                 On Appeal From the United States District Court
                     For the Eastern District of Pennsylvania
                         (D.C. Crim. No. 97-cr-00359-4)
                    District Judge: Honorable J. Curtis Joyner
                                ________________

                   Submitted Under Third Circuit LAR 34.1(a)
                               August 16, 2006

             Before: RENDELL, AMBRO and ROTH, Circuit Judges

                            (Filed: November 8, 2006)

                               ________________

                                   OPINION
                               ________________

PER CURIAM

    Brian Davis appeals the District Court’s order denying his motion for sentencing
relief under 18 U.S.C. § 3582(c)(2). As explained below, we will affirm.1

                                             I

       In 1998 a jury found Davis guilty of participation in a racketeering conspiracy (18

U.S.C. § 1962(d); Count I) and two counts of conspiracy to commit murder in furtherance

of racketeering activity (18 U.S.C. § 1959; Counts 9 and 10). Because his guidelines

range (life imprisonment) exceeded the statutory maximum, he received the statutory

maximum sentences instead: twenty years for Count I and ten years each for Counts 9 and

10, all consecutive to each other. (Davis subsequently pled guilty to a methamphetamine

conspiracy and, as part of the agreement, dropped the pending appeal with regard to his

racketeering convictions and agreed to forego attempts at collateral relief under 28 U.S.C.

§ 2255 and Fed. R. Civ. P. 60(b). Davis’s subsequent pro se appeal and section 2255

motion were dismissed accordingly.)

       In 2006 Davis filed a motion under section 3582(c)(2), arguing that retroactive

application of Amendment 591 of the United States Sentencing Guidelines requires a

reduction in his sentence. At issue is his sentence for Count 10. The Court proceeded

from USSG § 2E1.1 (Unlawful Conduct Relating to Racketeer Influenced and Corrupt

Organizations), whose Application Note 2 provides that “[i]f the underlying conduct

violates state law, the offense level corresponding to the most analogous federal offense is

to be used.” The District Court determined that the most analogous offense was federal


  1
    We have jurisdiction under 28 U.S.C. § 1291. Our review is plenary. United States
v. McKoy, 452 F.3d 234, 236 (3d Cir. 2006).

                                             2
first degree murder, 18 U.S.C. § 1111, resulting in the application of USSG § 2A1.1 and a

base offense level of 43.

       Amendment 591, effective November 1, 2000, requires that the initial selection of

the offense guideline be based on the statute or offense of conviction rather than on

judicial findings of actual conduct not made by the jury. Davis argues that under

Amendment 591, the starting point under the Guidelines should have been § 2E1.3

(Violent Crimes in Aid of Racketeering Activity), which instructs that the base offense

level is the greater of 12 or the offense level applicable to the underlying crime or

racketeering activity. As with § 2E1.1, an Application Note provides that if the

underlying conduct violates state law, the offense level corresponding to the most

analogous federal offense is to be used. According to Davis, that offense is conspiracy to

murder (18 U.S.C. § 1117). The corresponding guideline is § 2A1.5 (conspiracy or

solicitation to commit murder), which would have resulted in a base offense level of 28.

       The District Court denied Davis’s motion without explanation. This appeal

followed.

                                             II

       Following Davis’s argument leads to the same sentence imposed by the District

Court. As described above, Davis’s guidelines analysis stops when he arrives at USSG §

2A1.5. However, § 2A1.5(c) provides that if the offense resulted in the victim’s death (as

happened here), 2A1.1 (first degree murder) applies, the very result reached by the

District Court.

                                              3
       Davis argues that the “cross-referencing” (as he calls it) involved in proceeding

from § 2A1.5 to § 2A1.1 is prohibited by Amendment 591. However, he provides no

support for this contention. While Amendment 591 directs the District Court to apply

“the guidelines dictated by the statute of conviction,” United States v. Moreno, 421 F.3d

1217, 1220 (11th Cir. 2005), it does not permit the court to ignore the specific directions

provided by the guidelines. Indeed, the requirements of Amendment 591 and USSG

§ 2A1.5(c) can coexist in this instance without tension in light of the fact that section

2A1.1 is the ultimate guideline “dictated by the statute of conviction.”

       In Davis’s case, applying “the guideline dictated by the statute of conviction”, and

following the directions set forth in the guidelines as explained above, unavoidably leads

to § 2A1.1. Accordingly, we will affirm the judgment of the District Court.




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