US v. Bruce Alan Davidson, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:09-cr-00014-REM-JSK-2 Copies to all parties and the district court/agency. [998548207].. [10-4273]

US v. Bruce Alan Davidson, Jr.

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Case: 10-4273

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Date Filed: 03/18/2011

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-4273

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRUCE ALAN DAVIDSON, JR., Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, Chief District Judge. (2:09-cr-00014-REM-JSK-2)

Submitted:

February 24, 2011

Decided:

March 18, 2011

Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Deanna L. Pennington, Morgantown, West Virginia, for Appellant. Betsy C. Jividen, United States Attorney, Stephen D. Warner, Assistant United States Attorney, Elkins, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Bruce possess with Alan intent Davidson to pled guilty more to than conspiracy 50 grams to of

distribute

methamphetamine, 21 U.S.C. § 846 (2006), and was sentenced to a term of 235 months imprisonment. Davidson appeals his sentence,

contending that the district court clearly erred by increasing his sentence for obstruction § 3C1.1 risk of justice, and to for U.S. an Sentencing that the

Guidelines created a

Manual

(2009), of

offense life or

substantial

harm

human

environment, USSG § 2D1.1(b)(10(C)(ii). * the sentence is unreasonable. Davidson We affirm. in a

He also maintains that

participated

conspiracy

that

lasted

several years, involved a large number of people, and produced a large quantity of methamphetamine. Davidson was initially

released on bond after his arrest, but his bond was revoked after he tested positive in a field test for methamphetamine use. At the revocation hearing before a magistrate judge,

Davidson testified that he had not used methamphetamine, had not admitted using methamphetamine to the probation officer or a deputy marshal on the day he was tested and the day he was The government asserts that plain error review applies to Davidson's first two issues. However, Davidson preserved both issues for appeal by objecting to the enhancements in the district court. United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010).
*

2

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returned to custody, and did not check a box indicating that he admitted using methamphetamine on the admission form. The

magistrate judge found Davidson's testimony less credible than the probation officer's testimony to the contrary. Davidson acknowledged when he subsequently entered his guilty plea that he and co-defendant Jeremy Brown both cooked methamphetamine, often at a farm owned by Brown's mother. A few

days later, although his plea agreement required him to give truthful testimony, Davidson was called to testify at Brown's trial. Out of the Brown Brown presence to of the jury, Davidson denied denied a

conspiring ever

with

manufacture

methamphetamine, or

seeing

with

methamphetamine

seeing

methamphetamine lab on Brown's property, and denied that he had ever known Brown to use methamphetamine or that anyone obtained it from him. At the sentencing hearing, Davidson argued that his perjured testimony at the revocation hearing should not be the basis for an obstruction of justice adjustment because his

subsequent guilty plea had given him "a clean slate."

He also

argued that he should not be held responsible for creating a hazard to human life or the environment because he had no

control over what happened on Brown's property, where much of the methamphetamine was manufactured. The district court

overruled both objections and imposed sentence at the bottom of 3

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the advisory sentencing guideline range, finding that Davidson's arguments for a below-guideline sentence so that he could spend time with his children were at odds with his prior conduct and that a within-guideline sentence was necessary to reflect the seriousness of the offense, instill a proper respect for the law, and provide for Davidson's rehabilitation. sentence was at the bottom of the guideline range. On appeal, Davidson argues that the court failed to make adequate findings to support the adjustment for obstruction of justice, failed to consider properly the factors relevant to the enhancement for creating a risk of harm, thus improperly calculating the guideline range, and failed to consider The 235-month

adequately the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010) factors. We review a sentence for procedural and substantive Gall v. United States, 552 U.S. 38, 51 (2007).

reasonableness.

We must first ensure that the district court did not commit any "significant procedural error," such as failing to properly

calculate the applicable guidelines range, failing to consider the 18 U.S.C.A. § 3553(a) Id. factors, or failing to adequately

explain the sentence.

An adjustment for obstruction of justice is warranted if "the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with

respect to the investigation, prosecution, or sentencing of the 4

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instant

offense

of

conviction[.]"

USSG

§ 3C1.1.

The

application notes for § 3C1.1 specifically include perjury by defendant and providing materially false information to a judge or magistrate. § 3C1.1, the USSG § 3C1.1 cmt. n.4(b), (f). Supreme Court has defined For purposes of as "false

perjury

testimony concerning a material matter with the willful intent to provide false mistake, testimony, or faulty rather than as a result of

confusion,

memory."

United

States v.

Dunnigan, 507 U.S. 87, 94 (1993). "material evidence" as

Application Note 6 defines fact, statement, or

"evidence,

information that, if believed, would tend to influence or affect the issue under determination." Under Dunnigan, "it is

preferable for a district court to address each element of the perjury in a separate and clear finding[,]" 507 U.S. at 95, but it is sufficient if the district court makes a determination "that encompasses all of the factual predicates for a finding of perjury." Id. Davidson contends that the district court failed

to identify the statements he made at the revocation hearing that were false, whether they concerned a material matter, and whether they were willfully made. However, Davidson did not assert at sentencing that his testimony at the detention hearing was not perjured or not material or not given with the willful intent to influence the outcome of the detention hearing. 5 He thus conceded that it was

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all of the above. the district court

We conclude that it was not clear error for to base its and finding of perjury on the that

magistrate

judge's

implied,

undisputed,

finding

Davidson's testimony at the revocation hearing was not credible, and the probation officer's recommendation that the testimony was material and willful. 157, 162 (4th Cir. See United States v. Terry, 916 F.2d (without defendant's affirmative

1990)

showing that information in presentence report is inaccurate, district court may adopt findings without more explicit

explanation). Application factors offense relevant involving to Note the the 20(A) court's to § 2D1.1 sets out in four an an

determination of

that,

manufacture

methamphetamine,

enhancement for creation of a substantial risk of harm to human life or the environment is warranted. In the presentence

report, the probation officer discussed these factors in detail and explained how they supported application of the enhancement in this case. that he was At the sentencing hearing, Davidson argued only not responsible for any hazard created by the

manufacture of methamphetamine on Brown's property. contend again that no substantial the point. risk The of harm was

He did not there, that

created held

conceding

district

court

Davidson was responsible for the actions of his co-conspirators in furtherance of the conspiracy, see USSG § 1B1.3(a)(1)(B), but 6

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did not make detailed findings concerning the enhancement, since none were called for under Terry. court did not clearly err in We conclude that the district applying the enhancement for

creation of a substantial risk of harm. Davidson maintains that the district court's alleged errors in calculating his guideline range resulted in a sentence above the guideline range that, in his view, should have been used and, therefore, the sentence should not be afforded a

presumption of reasonableness.

However, we conclude that the

district court did not err in calculating the guideline range. Davidson also claims that the district court failed to consider adequately the § 3553(a) factors, resulting in a The

sentence greater than necessary.

This claim also fails.

court "must place on the record an individualized assessment based on the particular facts of the case before it [which] . . . provide[s] a rationale tailored to the particular case at hand and [is] adequate to permit meaningful appellate review." United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)

(internal

quotation

marks,

footnote,

and

citation

omitted).

This is true even when the district court sentences a defendant within the applicable guidelines range. Id.

At the same time, a sentence imposed within a properly calculated guidelines range enjoys a presumption of

reasonableness on appeal.

United States v. Go, 517 F.3d 216, 7

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218 (4th Cir. 2008); see Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding appellate presumption of reasonableness for within-guidelines sentence). Thus, an extensive explanation

is not required as long as the appellate court is satisfied "that [the district court] has considered the parties' arguments and has a reasoned basis for exercising [its] own legal

decisionmaking authority." 495, 500 (4th 131 Cir.) S. Ct.

United States v. Engle, 592 F.3d Rita, 551 U.S. at 356), cert. marks

(quoting 165

denied, omitted).

(2010)

(internal

quotation

Although inadequacy of the

Davidson district

did

not

object ruling at

to

the

alleged he

court's

sentencing,

preserved the issue for appeal simply by requesting a belowguideline sentence. Lynn, 592 F.3d at 577-78. We are satisfied

that the court adequately considered the § 3553(a) factors, made an individualized assessment of the relevant facts, and stated its reasons for imposing a within-guideline sentence in a manner sufficient to permit appellate review. Thus, the district court did not commit procedural

error and we exercise our discretion to "apply a presumption of reasonableness" to Davidson's within-guideline sentence. United

States v. Wright, 594 F.3d 259, 268 (4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S. Ct. 507 (2010) (internal quotation marks omitted). 8

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We district facts

therefore We

affirm

the with

sentence oral

imposed

by

the the the the

court. legal before

dispense

argument

because in aid

and

contentions the court

are and

adequately argument

presented not

materials

would

decisional process. AFFIRMED

9