Davis v. United States

817 F.3d 319, 2016 U.S. App. LEXIS 4755, 2016 WL 1028011
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 15, 2016
DocketNo. 14-3019
StatusPublished
Cited by32 cases

This text of 817 F.3d 319 (Davis v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. United States, 817 F.3d 319, 2016 U.S. App. LEXIS 4755, 2016 WL 1028011 (7th Cir. 2016).

Opinion

ROVNER, Circuit Judge.

Calvin Davis pleaded guilty in 2010 to, a narcotics conspiracy charge pursuant to a written plea agreement providing that he would be sentenced to a term equal to 66 percent of either the low end of the sentencing range advised by the Sentencing Guidelines or the statutory minimum term, whichever. was greater. See Fed. R.Crim.P. 11(c)(1)(C). Davis expectqd to receive a prison term of no more than 80 months. However, the Guidelines range as subsequently calculated by the probation officer and adopted by the district court turned out. to be much longer than the parties had expected it would be. The court ultimately ordered Davis to serve 172 months in prison, a term that was equal to 66 percent of the low end of the Guidelines range and therefore consistent with the plea agreement, but. more than twice what the parties had anticipated when they entered into that agreement. No appeal was filed from the sentence. But more than four years later, following the Supreme Court’s decision in Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), Davis filed a motion under 28 U.S.C. § 2255 contending that he was entitled to relief because the judge’s sentencing findings regarding his criminal history had increased the statutory- minimum term of imprisonment. He also asserted, among other claims, that his attorney was ineffective in advising, him about the consequences of his plea (including the likely sentence) and in failing to file a notice of appeal following his sentencing. The district court dismissed the motion, reasoning that Davis had no viable claim under Alleyne given that the Supreme Court has not yet declared that decision applicable retroactively on collateral review, and that Davis’s other claims were untimely. We agree and affirm the district court’s judgment. -

I.

In 2008, Davis became involved with a Rockford, Illinois drug ring led by Hollis Daniels that trafficked primarily in heroin and occasionally crack cocaine. See United States v. Block, 705 F.3d 755, 758 (7th Cir.2013) (describing the organization). His duties,included picking up heroin from a supplier in Chicago, dropping off the raw heroin to other conspirators for dilution and packaging, supplying street-level dealers with 25-count retail packages of heroin, and collecting the proceeds of their sales. The organization distributed approximately 700 grams of heroin per week. Davis was stopped and - arrested while on his way to complete a pre-arranged- delivery of heroin to someone who was, unbeknownst to him, a confidential informant; he had 80 grams of heroin in his possession. After he was charged in Illinois state court, he began to cooperate with federal and state agents investigating the Hollis organization, became a confidential informant, and over the course of the next year wore a recording device to capture other members of the organization discussing their illegal activities. The investigation culminated in a second superseding indictment charging Davis and 14 others with conspiring to distribute (and to possess with the intent to distribute) more than one kilogram of heroin and 50 grams of crack cocaine, among other offenses. See 21 U.S.G. §§ 841(a)(1), 846.

Davis, pleaded guilty to the conspiracy charge pursuant to a written plea agreement. Davis agreed to continue cooperating with the government and to provide truthful testimony in any subsequent proceeding. In exchange for his assistance, the government agreed to ask the court to depart downward from either the applicable statutory minimum term of imprisonment or the low end of the advisory range [322]*322specified by the Sentencing Guidelines, whichever was higher, and to impose a sentence equal to 66 percent of that term. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. Because the drug conspiracy involved more than one kilogram of heroin, Davis was presumptively subject to a statutory minimum sentence of 10 years. See 21 U.S.C. ■ § 841(b)(1)(A)®. The agreement expressly acknowledged that minimum term as well as the maximum possible term of life imprisonment. See R. 300 at 4 ¶ 8a & 7- ¶ lOd.1 However, given what the attorneys knew about Davis’s criminal history, ■ both parties anticipated that Davis would have only one criminal history point (resulting in a criminal history of I) and that he would consequently be eligible for a sentence below the statutory minimum. See 18 U.S.C. § 3553(f); U.S.S.G. § 501.2(a)(1). Based on their preliminary Guidelines calculations, the parties also anticipated that the advisory Guidelines range would be 108 to 135 months. In accordance with the Government’s agreement to seek a downward departure to 66 percent of either the low end of that range (ie., approximately 71 months) or of the statutory 10-year minimum (roughly 79 months), whichever was greater, the parties expected the recommended sentence to be no more than 80 months. This was a Rule 11(c)(1)(C) agreement, so provided that the government found Davis’s cooperation to be sufficient and made the departure motion, the district court, having accepted the agreement,'was 'obliged to-sentence Davis to 66% of either the Guidelines minimum or statutory minimum term.

The agreement recognized in several ways, however, that the parties’ Guidelines calculations were preliminary and that both the Guidelines range and the final sentence might-ultimately turn out to be different than the parties assumed at the time they entered into the agreement. Thus, iñ recounting the parties’ calculations as to Davis’s criminal history and the anticipated Guidelines range, for example, the agreement noted that the calculations were “based on the facts now known to the government.” R. 300 at 6 ¶ 10(c) & (d). More to the point, the agreement expressly recognized that the parties’ Guidelines calculations were tentative, that the calculations might change following the probation officer’s investigation, and that any such changes would not constitute a basis for a withdrawal of Davis’s guilty plea:

Defendant and his attorney and the government acknowledge that the above Guideline calculations are preliminary in nature, and are' non-binding predictions upon which neither party is entitled to rely. Defendant understands that further review of the facts or applicable legal principles may lead the government to conclude that different or addi- . tional Guideline provisions apply in this case. Defendant' understands that the Probation Office' will conduct its ■ own investigation and that the Court ultimately determines the facts and law relevant to sentencing, and that the Court’s determinations govern" the final Guideline calculation. Accordingly,- the validity of this Agreement is not contingent upon the probation officer’s or the Court’s concurrence with the above calculations, and defendant shall not have a right to withdraw his plea on the basis of the Court’s rejection of these calculations.

R. 300 at 7 ¶ lOe. The agreement similarly acknowledged that any’ errors in correcting or interpreting' the Guidelines could be corrected by either party prior to [323]

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Bluebook (online)
817 F.3d 319, 2016 U.S. App. LEXIS 4755, 2016 WL 1028011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-united-states-ca7-2016.