US v. Zavier Marquis Davi
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 3:11-cr-00080-MOC-DSC-1. [999135917]. [12-4346]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4346
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ZAVIER MARQUIS DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:11-cr-00080-MOC-DSC-1)
Argued:
May 17, 2013
Decided:
June 24, 2013
Before MOTZ, GREGORY, Circuit Judges, and Ellen L. HOLLANDER,
United States District Judge for the District of Maryland,
sitting by designation.
Vacated and remanded by published opinion. Judge Gregory wrote
the opinion, in which Judge Motz and Judge Hollander joined.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina; Thomas N. Cochran, Assistant
Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Asheville, North Carolina, for Appellant.
Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina, for
Appellee.
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GREGORY, Circuit Judge:
As
permitted
under
North
Carolina
law,
Appellant
Zavier M. Davis received one consolidated sentence for multiple
violations of state law.
career
offender
Guidelines
Based on its interpretation of the
enhancement
(“Guidelines”),
in
see
the
United
U.S.S.G.
States
§ 4B1.1,
Sentencing
the
district
court counted this consolidated sentence as at least “two prior
felony convictions” and sentenced Davis as a career offender.
We hold that a consolidated sentence under North Carolina law is
a
single
sentence
enhancement.
for
purposes
of
the
career
offender
Thus, we vacate Davis’ sentence and remand for
resentencing.
I.
In July 2004, Davis used a handgun to rob a Burger King in
Charlotte, North Carolina.
Davis was arrested and indicted in
state court for robbery with a dangerous weapon, in violation of
N.C. Gen. Stat. Ann. § 14-87. *
On February 23, 2005, Davis used
a gun to rob a McDonald’s in Charlotte, North Carolina.
prior
to
this
robbery,
Davis
individual and rob another.
used
a
gun
to
A day
assault
one
In an eight-count indictment for
the February 2005 robberies, Davis was charged with five counts
of robbery with a dangerous weapon, among other things.
*
The date of Davis’ arrest is not evident in the record, but
his counsel conceded before the district court that it was prior
to his February 2005 robberies.
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On September 9, 2005, Davis pled guilty in North Carolina
state court to several counts in the July 2004 and February 2005
state indictments.
As relevant, Davis pled guilty to six counts
of robbery with a dangerous weapon (“RWDW”)--one count for the
2004
robbery,
Consistent
with
and
the
five
plea
counts
for
agreement,
the
the
2005
charges
robberies.
were
to
be
consolidated for judgment as one RWDW and sentenced as a class D
felony. See N.C. Gen. Stat. Ann. § 15A-1340.15(b). In exchange,
the state agreed to dismiss the remaining charges. In accordance
with the plea, the state court imposed one sentence of 61 to 83
months.
On July 31, 2010, Davis used a handgun to rob a Wendy’s
Restaurant in Charlotte, North Carolina.
In the U.S. district
court, without the benefit of a written plea agreement, Davis
pled guilty to three counts: (1) Hobbs Act robbery; (2) use of a
firearm in furtherance of a violent crime; and (3) possession of
a firearm by a convicted felon.
Following his plea, a federal probation officer prepared a
Presentence Investigation Report (“PSR”).
Guidelines
range
applicable
to
Davis,
the
In calculating the
probation
officer
noted that Davis qualified for the career offender enhancement
under U.S.S.G. § 4B1.1 because he was at least 18 years old when
he committed the instant robbery, and because he had two prior
North
Carolina
robbery
offenses.
Accordingly,
the
probation
officer recommended that the court sentence Davis as a career
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offender, increasing his base offense level from twenty-six to
thirty-two.
At
sentencing,
Davis
objected
to
the
career
offender
enhancement, arguing that he received a “consolidated sentence”
for his prior state offenses and thus did not have “at least two
prior felony convictions” as defined by the Guidelines.
Government
opposed
the
motion,
asserting
that
prior
The
felony
convictions that are consolidated for sentencing but based on
offenses that were separated by an intervening arrest constitute
separate sentences for the purposes of the enhancement. Because
Davis’ North Carolina offenses were separated by an intervening
arrest, the Government argued the career offender enhancement
was applicable.
The
Davis’
district
objection,
court
and
agreed
applied
with
the
the
Government,
enhancement.
Based
denied
on
a
criminal history category of VI, it determined Davis’ applicable
career-offender Guidelines range was 262 to 327 months.
district
court
then
sentenced
Davis
to
a
The
within-Guidelines
sentence of 276 months.
Davis timely appealed and we have jurisdiction pursuant to
28 U.S.C. § 1291.
II.
Davis contends that the district court erroneously applied
the career offender enhancement to him because under the plain
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language
cannot
of
be
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the
Guidelines,
counted
interpretation
of
as
the
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a
single
separate
consolidated
sentences.
Guidelines
de
novo.
We
sentence
review
United
States
the
v.
Henoud, 81 F.3d 484, 490 (4th Cir. 1996).
A.
To be labeled a career offender:
(1) the defendant must be
18 or older at the time he committed the present offense; (2)
the present offense must be a crime of violence or controlled
substance offense; and (3) the defendant must have “at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.”
U.S.S.G. § 4B1.1(a).
The sole
issue on appeal is whether Davis’ prior state robbery offenses
qualify
as
“two
prior
felony
convictions”
as
defined
by
the
Guidelines.
Under the Guidelines, the existence of two prior felony
convictions alone is not dispositive; the defendant must also
have
at
least
Specifically,
two
the
satisfied if:
prior
“two
sentences
prior
felony
for
those
convictions.
convictions”
prong
is
(1) the defendant has previously sustained at
least two felony convictions of either a crime of violence or a
controlled
substance
offense;
and
(2)
“the
sentences
for
at
least two of the aforementioned felony convictions are counted
separately.” U.S.S.G. § 4B1.2(c) (emphasis added).
Davis
convictions
concedes
of
either
that
a
the
former
crime
of
5
requirement--felony
violence
or
controlled
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substance--is
met
convictions.
He
separately
because
he
contends,
counted
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has
at
however,
sentences
for
the
least
the
two
prior
latter
robbery
requirement--
convictions--is
not
met
because he received only one sentence for those convictions.
For the reasons that follow, we agree.
B.
First,
as
noted
above,
the
plain
language
of
U.S.S.G.
§ 4B1.2(c) requires that a defendant can only be sentenced as a
career
offender
prior felonies.
if
he
received
“sentences
for
at
least
two”
Davis received only one sentence for his prior
state felonies.
Under North Carolina’s statutory provision for “[m]ultiple
convictions,” where an individual is convicted of more than one
offense, the general rule is that “all sentences of imprisonment
run
concurrently
with
any
other
sentences
N.C. Gen. Stat. Ann. § 15A-1340.15(a).
to this general rule.
sentence by
expressly
of
imprisonment.”
There are two exceptions
First, the court may impose a consecutive
specifying
the
sentence
as
such.
Id.
Alternatively, the court may impose a consolidated sentence or
judgment:
If an offender is convicted of more than one offense
at the same time, the court may consolidate the
offenses for judgment and impose a single judgment for
the consolidated offenses. The judgment shall contain
a sentence disposition specified for the class of
offense and prior record level of the most serious
offense, and its minimum sentence of imprisonment
shall be within the ranges specified for that class of
offense and prior record level, unless applicable
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statutes require or authorize another minimum sentence
of imprisonment.
Id.
§ 15A-1340.15(b)
(emphasis
added).
Thus,
when
a
North
Carolina court consolidates offenses for judgment, the outcome
is a single judgment for which the length of the sentence is
controlled by the maximum sentence for the most serious offense.
For
his
prior
2004
and
2005
offenses,
Davis
received
a
“single judgment for [ ] consolidated offenses” pursuant to this
North Carolina statutory provision. Consequently, Davis came to
federal court with one consolidated sentence.
C.
Second, we have no published authority on whether a North
Carolina consolidated sentence is a single sentence or multiple
sentences under the Guidelines, and thus no published authority
suggesting
we
should
disregard
the
plain
meaning
of
the
Guidelines.
The Government contends that we have decided this issue
before, stating that “[i]t is well established in this circuit
that
cases
consolidated
for
sentencing
under
North
Carolina
law[] yield multiple separate offenses as long as the offenses
were separated by an intervening arrest.”
(Gov’t’s Br. at 8.)
In support, the Government cites to United States v. Huggins,
191
F.3d
opinions.
532,
539
(4th
Cir.
1999),
and
a
few
unpublished
But the latter are without precedential value, and
Huggins is clearly distinguishable.
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In Huggins, the defendant argued that he was erroneously
sentenced
as
a
career
offender
because
his
two
prior
1987
convictions were “consolidated for sentencing,” and thus were
related offenses that counted together as a single offense.
F.3d at 539.
191
We cited to the Guidelines commentary, which at
the time stated “‘[p]rior sentences are not considered related
if they were for offenses that were separated by an intervening
arrest.’”
Id.
(1999)).
(quoting
U.S.S.G.
§ 4A1.2,
application
n.
3
Because Huggins was arrested for his first offense in
March 1987, a month prior to committing his second offense, we
found that there was an intervening arrest, and thus, his prior
offenses were not related and counted separately for purposes of
the career offender enhancement.
Davis contends that Huggins is distinguishable because it
is based on the pre-2007 version of § 4A1.2, which turned on
whether the prior cases were “related.”
Under the old rule, two
sentences consolidated for sentencing were related and counted
as one sentence, if the underlying offenses were not separated
by an intervening arrest.
We find that for purposes of this
case there is no substantive difference between the old rule and
the
new
rule,
separately
arrest.
if
which
the
provides
offenses
that
were
two
prior
separated
See U.S.S.G. § 4A1.2(a)(2).
by
sentences
an
count
intervening
Thus, Huggins cannot be
distinguished based merely on a nonpertinent change to the text
of the applicable rule.
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The relevant distinction is that the defendant in Huggins
received
two
separate
sentences
for
his
two
prior
offenses,
notwithstanding the fact that the offenses were “consolidated
for
sentencing.”
The
prior
offenses
in
Huggins
occurred
in
1987, six years before North Carolina enacted the consolidated
sentence provision.
See N.C. Gen. Ann. Laws 1993, c. 538, § 1,
eff. Oct. 1, 1994; see also State v. Branch, 518 S.E.2d 213, 215
(N.C. Ct. App. 1999) (holding that as a matter of law, “offenses
that were committed prior to 1 October 1994, the effective date
of the Structured Sentencing Act,” cannot be consolidated for
judgment under the Act).
Thus, Huggins is inapposite because it
does not address the textual issue raised in this case, an issue
that could not have been raised at the time.
The
Huggins
term
“consolidated
for
sentencing”
does
not
to
“consolidated
equate
“consolidated judgment”).
as
addressed
sentence”
in
(or
The distinction is not merely textual
or grammatical; the former is procedural, while the latter is
substantive.
the
When offenses are “consolidated for sentencing,”
consolidation
is
merely
a
procedural
mechanism
used
primarily out of concern for judicial economy and efficiency.
See, e.g., United States v. Cole, 857 F.2d 971, 974 (4th Cir.
1988) (“interests of judicial economy were furthered by [] joint
trial”).
Whereas, under North Carolina law, a “consolidated
sentence” is a mechanism that affects the substantive rights of
a defendant, and in some scenarios, could be beneficial to the
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See State v. Tucker, 588 S.E.2d 853, 857 (N.C. 2003)
(consolidated judgments “work[] to the benefit of the defendant
by limiting the maximum sentence that he can receive for all of
the convictions so consolidated”) (citation omitted).
a
consolidated
sentence
is
distinct
from
a
As such,
consolidated
proceeding.
D.
The language of the Guidelines is plain.
the
basic
principle
that
there
must
be
sentence for the enhancement to apply.
It begins with
more
than
one
prior
See U.S.S.G. § 4B1.2(c)
(laying out the “sentence” requirement in plural, as opposed to
singular, form).
In the absence of “multiple prior sentences,”
the existence of an intervening arrest is irrelevant.
See id.
§ 4A1.2(a)(2).
We
hold
today
that
where
a
defendant
receives
a
“consolidated sentence” (or “consolidated judgment”) under North
Carolina law, it is one sentence and absent another qualifying
sentence, the enhancement is inapplicable.
In laying out this
principle, we adhere to and are constrained by “well-established
federalism principles [which] do not permit a federal court to
reject
North
Carolina’s
judgment
as
to
the
seriousness
of
a
North Carolina crime, prosecuted in a North Carolina court and
adjudicated
by
a
North
Carolina
judge,
merely
because
federal court might ‘expect’ a more serious punishment.”
the
United
States v. Simmons, 649 F.3d 237, 249 (4th Cir. 2011) (en banc).
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Applying
this
test,
we
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find
that
the
career
offender
enhancement is inapplicable to Davis because the third prong of
the
career
offender
enhancement
requiring
“two
prior
felony
convictions,” as defined by the Guidelines, is not satisfied.
For
the
2004
consolidated
and
2005
sentence.
robberies,
Because
the
Davis
received
Government
a
failed
single
to
put
forth another qualifying sentence, it was error for the district
court to enhance Davis’ applicable guideline range and sentence
him as a career offender.
To be clear, our decision does not turn on state law.
See
United States v. Stewart, 49 F.3d 121, 123 n.3 (4th Cir. 1995)
(“A federal court construing the federal Sentencing Guidelines
need not turn to state law.”).
Instead, it rests on what the
plain language of the Guidelines demands.
The Government contends that our interpretation belies the
policy goals of the Sentencing Commission as it would result in
sentencing disparities, i.e., some defendants would avoid the
career offender enhancement simply because of a state court’s
decision
to
consolidate
sentences,
while
other
defendants
without consolidated sentences would not be so lucky.
We are
not persuaded.
As a general matter, the plain meaning of the Guidelines
trumps policy considerations.
See United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 240 (1989) (“The plain meaning of
legislation should be conclusive, except in the rare cases in
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which the literal application of a statute will produce a result
demonstrably
at
odds
with
the
intentions
of
its
(internal quotation marks and alterations omitted).
as
Davis
points
Guidelines,
out,
such
as
there
are
drafters.”)
Moreover,
other
mechanisms
within
the
and
variances,
which
the
departures
Government could urge the sentencing court to apply, in order to
correct identified sentencing disparities.
III.
Based on our interpretation of the Guidelines, we conclude
that the district court erred in applying the career offender
enhancement
because
sentence, not two.
Davis
had
only
one
prior
qualifying
Accordingly, we vacate Davis’ sentence and
remand this matter for resentencing without the career offender
enhancement.
VACATED AND REMANDED
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