USA v. Phillip Davi


Per Curiam OPINION filed: For the reasons set forth in our recent decision in United States v. Pawlak, and upon the government s concession of prejudicial sentencing error, we VACATE Davis s sentence and REMAND for resentencing. decision not for publication. Danny J. Boggs, Julia Smith Gibbons, and Richard Allen Griffin, Circuit Judges.

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Case: 15-3596 Document: 21-2 Filed: 05/17/2016 Page: 1 NOT RECOMMENDED FOR PUBLICATION File Name: 16a0269n.06 FILED No. 15-3596 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PHILLIP T. DAVIS, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) May 17, 2016 DEBORAH S. HUNT, Clerk ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO BEFORE: BOGGS, GIBBONS, and GRIFFIN, Circuit Judges. PER CURIAM. Defendant Phillip Davis pleaded guilty to two counts of distributing controlled substances in violation of 21 U.S.C. § 841, and the district court sentenced him to 120 months of imprisonment. The sole issue on appeal is whether the district court erred in designating Davis as a “career offender” pursuant to U.S. Sentencing Guidelines § 4B1.1 in light of Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating as unconstitutionally vague the “residual clause” of the Armed Career Criminal Act, 18 U.S.C. § 924(e)). For the reasons set forth in our recent decision in United States v. Pawlak, No. 15-3566, slip op. at 2−13 (6th Cir. May 13, 2016) (holding an identical “residual clause” in the U.S. Sentencing Guidelines unconstitutionally vague), and upon the government’s concession of prejudicial sentencing error, we vacate Davis’s sentence and remand for resentencing.

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