US v. George Davi

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:08-cr-00133-RAJ-TEM-1, 4:16-cv-00082-RAJ. Copies to all parties and the district court. [1000149217]. [17-4011]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-4011

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE WILLIE DAVIS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Raymond A. Jackson, District Judge. (4:08-cr-00133-RAJ-TEM-1; 4:16cv-00082-RAJ)

Submitted: August 29, 2017

Decided: September 5, 2017

Before DUNCAN, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Nicholas J. Xenakis, Research and Writing
Attorney, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney,
Richard D. Cooke, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In July 2009, George Willie Davis was convicted, pursuant to a plea agreement, of
possession with intent to distribute five grams or more of cocaine base, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B) (2012), and of possession of a firearm by a convicted felon,
in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012). The district court deemed Davis
both a career offender pursuant to U.S. Sentencing Guidelines Manual § 4B1.1 (2008) and
an armed career criminal pursuant to 18 U.S.C. § 924(e)(1) (2012). At the time of his
federal sentencing, Davis had three predicate convictions to support these enhancements;
he had two Virginia robbery convictions and one Virginia conviction for attempted
statutory burglary.

The district court imposed concurrent terms of 192 months of

imprisonment on both counts, and Davis did not file a direct appeal.
In 2013, Davis filed an unsuccessful 28 U.S.C. § 2255 (2012) motion. See United
States v. Davis, 545 F. App’x 228 (4th Cir. 2013). In June 2016, we granted Davis’ motion
for authorization to file a second or successive § 2255 motion in light of Johnson v. United
States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257, 1268 (2016).
In re Davis, No. 16-9152 (4th Cir. June 23, 2016) (unpublished order).
Davis subsequently filed a § 2255 motion in the district court, claiming that he was
improperly sentenced as both an armed career criminal and a career offender in light of
Johnson and Welch. Although the district court found that Davis was appropriately
sentenced as a career offender, the parties agreed that, post-Johnson, attempted statutory
burglary did not qualify as a violent felony under 18 U.S.C. § 924(e) and therefore Davis
no longer qualified as an armed career criminal. The court therefore granted Davis’ § 2255
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motion and corrected his sentence on the § 922(g) count “to reduce the term of
imprisonment to the applicable statutory maximum (10 years), to run concurrently with”
the drug distribution count. The district court further “amended” Davis’ § 922(g) sentence
“to reflect that he is not an ‘armed career criminal’ and that he is guilty of a Class C felony
. . . rather than a Class A felony.” The district court provided that Davis would not be
formally resentenced on either count, entered an amended criminal judgment, and granted
a certificate of appealability. Davis timely appeals, arguing that the district court abused
its discretion by not conducting a formal resentencing after granting him relief under
§ 2255.
The form of relief awarded by the district court in a successful § 2255 proceeding
is reviewed for abuse of discretion. United States v. Hadden, 475 F.3d 652, 667 (4th Cir.
2007). The district court has broad and flexible power to fashion an appropriate remedy in
granting relief on collateral review. United States v. Hillary, 106 F.3d 1170, 1171 (4th Cir.
1997). In Hadden, we explained that Hillary held only that the district court is authorized
to conduct a resentencing in awarding relief under § 2255—it is not required, in resolving
every § 2255 motion, to conduct a resentencing. 475 F.3d at 661.
“First, the district court must determine whether the prisoner’s sentence is unlawful
on one of the specified grounds.” Hadden, 475 F.3d at 661. If the district court determines
that the sentence is unlawful, the court “shall vacate and set . . . aside” the sentence. Id.
As we observed, pursuant to § 2255(b), “the end result of a successful § 2255 proceeding
must be the vacatur of the prisoner’s unlawful sentence . . . and one of the following: (1) the
prisoner’s release, (2) the grant of a future new trial to the prisoner, (3) or a new sentence,
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be it imposed by (a) a resentencing or (b) a corrected sentence.” Id. A district court need
not actually vacate the original sentence if the judgment has the “practical effect” of
vacating the original sentence. Id. at 661 n.8. In addition, the “new” sentence may be the
same as the original sentence. Id. at 661 n.9. “[T]he goal of § 2255 review is to place the
defendant in exactly the same position he would have been had there been no error in the
first instance.” Id. at 665 (internal quotation marks omitted).
In light of these authorities, we conclude that the district court did not abuse its
discretion in electing to correct Davis’ sentence without holding a resentencing hearing.
As properly calculated by the district court, Davis faced the same Guidelines range even
without the armed career criminal enhancement due to the application of the career
offender provision set forth in USSG § 4B1.1(b). Thus, the sole harm to Davis, as
identified by the district court, was the increase in the statutory maximum on the § 922(g)
count, which elevated the offense to a Class A felony and subjected him to higher
imprisonment ranges should he later violate his conditions of supervised release. To
remedy this, the district court reduced Davis’ term of imprisonment on the § 922(g) count
to the statutory maximum of 10 years, amended the sentence to reflect the fact that he is
not an armed career criminal, and reimposed the original sentence on the drug distribution
count. We discern no abuse of discretion in the district court’s ruling that a sentencing
hearing was not required under these circumstances. See Hadden, 475 F.3d at 667 (“To
‘correct’ means to ‘make or set right.’ Merriam Webster’s Collegiate Dictionary 280 (11th
ed. 2004). This is precisely what the district court did here.”). We further conclude that
our decision in Hadden forecloses Davis’ argument that a resentencing hearing was
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required under the “sentence package theory.” 475 F.3d at 669 (explaining that the district
court “has broad and flexible power under § 2255 to determine the nature and scope of the
remedial proceedings in the first instance . . . and nothing in the sentence-package theory
forbids the district courts from doing what the text of § 2255 clearly permits: ‘correcting’
a prisoner’s unlawful sentence without conducting a formal ‘resentencing’” (alterations
and internal quotation marks omitted)).
Finally, the parties offer extensive arguments regarding whether Virginia robbery
qualifies as a “crime of violence” as defined in USSG § 4B1.2(a) and therefore supports
Davis’ career offender enhancement. Although we recently held in United States v.
Winston, 850 F.3d 677, 685 (4th Cir. 2017), that a conviction for Virginia common law
robbery does not qualify as a violent felony under the Armed Career Criminal Act, such a
conviction remains a qualifying career offender predicate under the residual clause of the
career offender guideline. See United States v. Riley, 856 F.3d 326, 329 (4th Cir. 2017)
(“Robbery . . . is a paradigmatic example of a crime presenting ‘a serious potential risk of
physical injury to another.’ It plainly constitutes a crime of violence under the residual
clause.”), petition for cert. filed, __ U.S.L.W. __ (U.S. Aug. 7, 2017) (No. 17-5559). The
residual clause in USSG § 4B1.2(a)(2) was in effect when Davis was sentenced, and his
challenges to his career offender status on that basis are foreclosed by Beckles v. United

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States, 137 S. Ct. 886, 894 (2017). Moreover, contrary to Davis’ arguments on appeal, he
is not entitled to a new sentencing hearing under the current version of the Guidelines. *
Accordingly, we affirm the district court’s order and amended judgment. We
dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
process.
AFFIRMED

*

As stated in Hadden, “the goal of § 2255 review is to place the defendant in exactly
the same position he would have been had there been no error in the first instance.” 475
F.3d at 665. Here, Davis seeks to be placed in a better position by asking to be sentenced
under the current version of § 4B1.2(a), which no longer contains the residual clause.
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