USA v. Tye Davi

Filing

NOT PRECEDENTIAL OPINION Coram: HARDIMAN, ROTH and FISHER, Circuit Judges. Total Pages: 6. Judge: HARDIMAN Authoring. We Grant Counsel's Motion to Withdraw.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-4054
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UNITED STATES OF AMERICA
v.
TYE DAVIS,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-04-cr-00040-001)
District Judge: Honorable Sylvia H. Rambo
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 23, 2017
Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.
(Filed: June 9, 2017)
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OPINION*
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*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.

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HARDIMAN, Circuit Judge.
Tye Davis appeals the District Court’s order denying his motion for a sentence
reduction. His counsel has moved to withdraw pursuant to Anders v. California, 386 U.S.
738 (1967), and Davis has not submitted a pro se brief. We will grant counsel’s motion
and affirm the order of the District Court.
I
In 2004, Davis pleaded guilty to charges of drug and weapons possession. The
Probation Office prepared a Presentence Investigation Report (PSR) which calculated
Davis’s offense level as 33, yielding an advisory range of 210 to 262 months’
incarceration under the United States Sentencing Guidelines. The Court imposed a
bottom-of-the-Guidelines sentence of 210 months’ imprisonment.
Following an appeal, we vacated Davis’s sentence and remanded to the District
Court for resentencing in accordance with United States v. Booker, 543 U.S. 220 (2005).
United States v. Davis, 267 F. App’x 183 (2008). In anticipation of Davis’s 2008
resentencing, the Government prepared a new PSR and, in so doing, realized for the first
time that Davis was subject to the career offender enhancement. This enhancement
increased Davis’s Guidelines range from 210–262 months to 262–327 months. At the
resentencing proceeding, the District Court adopted the new PSR that categorized Davis
as a career offender, but granted Davis a downward variance, again sentencing him to
210 months’ imprisonment. The Court imposed this sentence—the same as Davis’s

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original sentence based on the mistakenly lenient PSR—because it did not believe that
Davis should be “punished [for] a mistake by the Court.” App. 22.
Following resentencing, Davis again appealed, this time arguing that the District
Court should have suppressed certain incriminating evidence. United States v. Davis, 393
F. App’x 895 (3d Cir. 2010). After noting that Davis had been sentenced as a career
offender, id. at 896, we denied Davis’s motion to suppress and affirmed the District
Court’s judgment of conviction and sentence, id. at 899. Davis then filed a petition under
28 U.S.C. § 2255(a), alleging that his counsel was ineffective at resentencing. The
District Court rejected that petition, explaining that Davis could not show prejudice
because he had been allowed to retain his mistakenly lenient 210-month sentence. United
States v. Davis, 2012 WL 425181, at *1 (M.D. Pa. Feb. 9, 2012).
Finally, Davis filed the motion to reduce sentence that is before us now. He argued
that Amendment 782 to the Guidelines—which reduced the base offense levels in the
drug quantity table by two levels—should reduce his sentencing range to 100–125
months. The District Court rejected Davis’s motion, reasoning that Davis did not qualify
for a sentence reduction because of his career offender status.
Davis filed this appeal and his counsel moved to withdraw under Anders.

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II1
When appointed counsel finds his client’s appeal to be “wholly frivolous,” he
should “so advise the court and request permission to withdraw.” Anders, 386 U.S. at
744. When counsel moves to withdraw, we must determine whether: (1) “counsel
adequately fulfilled the [Anders] requirements,” and (2) “an independent review of the
record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d
Cir. 2001).
To meet the first prong, counsel must thoroughly examine the record in search of
appealable issues and explain why those issues are frivolous. 3d Cir. L.A.R. 109.2(a).
“[C]ounsel need not discuss every possible issue,” but rather must assure the Court that
“no further discussion of other areas of the case is necessary.” United States v. Marvin,
211 F.3d 778, 780–81 (3d Cir. 2000) (citations omitted).
With regard to this motion to reduce sentence under § 3582(c)(2), counsel notes
that the only possible issue on appeal is Davis’s eligibility for a sentence reduction. A
district court may reduce a sentence under § 3582(c)(2) only if “two requirements are
satisfied.” United States v. Flemming, 617 F.3d 252, 257 (3d Cir. 2010). First, the
sentence must have been “based on a sentencing range that has subsequently been

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The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231,
and had jurisdiction to consider Davis’s motion for a sentence reduction pursuant to 18
U.S.C. § 3582(c)(2). United States v. Ortiz-Vega, 744 F.3d 869, 870 n.1 (3d Cir. 2014).
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review to determine
whether the record presents any “nonfrivolous issues.” Simon v. Gov’t of V.I., 679 F.3d
109, 114 (3d Cir. 2012).
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lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Second, the sentence
reduction must be “consistent with applicable policy statements issued by the Sentencing
Commission.” Id.
Even if we assume Davis’s sentence was “based on” a since-lowered guideline, as
counsel noted, he is unable to satisfy the second requirement because a reduction would
not be consistent with the applicable policy statement. The relevant policy statement
provides that a “reduction in the defendant’s term of imprisonment is . . . not authorized”
if the amendment did “not have the effect of lowering the defendant’s applicable
guideline range.” USSG § 1B1.10(a)(2). “[A]pplicable guideline range” is defined as “the
guideline range that corresponds to the offense level and criminal history category
determined pursuant to [§] 1B1.1(a), which is determined before consideration of . . . any
variance.” USSG § 1B1.10 cmt. n.1(A) (emphases added).
Amendment 782 did not alter the Guidelines range for career offenders. See
United States v. Thompson, 825 F.3d 198, 202 (3d Cir. 2016). At Davis’s 2008
resentencing, the District Court adopted the new PSR that classified Davis as a career
offender, and we later affirmed that “judgment of conviction and sentence.” Davis, 393 F.
App’x at 896, 899. Consequently, Davis’s “applicable guideline range” is that of a career
offender and is not affected by Amendment 782. Therefore, Davis is ineligible for a
reduction pursuant to § 3582(c)(2). See United States v. Flemming, 723 F.3d 407, 412 (3d
Cir. 2013). As noted in the Sentencing Commission policy statement, Davis’s downward
variance does not change this analysis. See id. at 411–13; Thompson, 825 F.3d at 204.
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*

After our independent review of the record, we conclude that Davis is ineligible
for a reduction in sentence and there are no nonfrivolous grounds for appeal.
Accordingly, we will affirm the District Court’s judgment and grant counsel’s motion to
withdraw.

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