NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0123n.06
No. 16-4732
UNITED STATES COURT OF APPEALS FILED Mar 14, 2019 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk ) UNITED STATES OF AMERICA, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT Plaintiff-Appellee, ) COURT FOR THE ) NORTHERN DISTRICT OF v. ) OHIO ) ANDREW DAVISON, ) ) OPINION Defendant-Appellant. ) )
Before: BOGGS, BATCHELDER, and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Appellant Andrew Davison asks us to reverse his
sentence on the grounds that the district court improperly imposed a crime-of-violence
enhancement under the United States Sentencing Guidelines. Davison’s sentence enhancement
was based on a prior Ohio conviction for attempted felonious assault, which is no longer a crime
of violence under a recent published opinion of our en banc court. See United States v. Burris,
912 F.3d 386, 402, 406–07 (6th Cir. Jan. 2019) (en banc). We therefore reverse and remand for
resentencing.
Davison also challenges the validity of a search warrant; the imposition of two other
Guidelines enhancements (one for possessing a weapon in connection with drug trafficking and
one for attempting to obstruct justice); the substantive reasonableness of his sentence; and the
district court’s failure to order a competency hearing before allowing Davison to represent himself
at trial. We affirm the district court as to all these other challenges. No. 16-4732, United States v. Davison
I
The undisputed facts of this case are straightforward: local law-enforcement officers in
Elyria, Ohio, executed six controlled drug purchases in which a confidential informant bought
cocaine from Appellant Andrew Davison. One of the controlled buys occurred in the driveway of
197 Warden Avenue, and police observed Davison travel to or from 197 Warden before or after
other controlled buys.
Elyria Police Detective Chris Constantino filed an affidavit describing in detail the six
controlled buys and thereby secured a warrant to search 197 Warden for evidence of drug
trafficking. In executing that warrant, police found a shotgun and a loaded handgun in the master
bedroom; Davison, a convicted felon, later confessed to having purchased the guns. Davison was
charged federally with being a felon in possession of a firearm and with possessing marijuana and
cocaine with intent to distribute. The government voluntarily dismissed the drug charges. Davison
proceeded to jury trial on the firearm charge, the jury found him guilty, and the district court
sentenced Davison to the statutory maximum—120 months of imprisonment.
II
We review de novo the district court’s determination that Davison’s prior Ohio conviction
for attempted felonious assault was categorically a crime of violence under USSG §4B1.2(a). At
the time of sentencing, Anderson v. United States was controlling precedent in our circuit and
dictated such a determination. See Anderson, 695 F.3d 390, 402 (6th Cir. 2012). As a result,
following Anderson, the district court determined Davison’s base offense level to be 20 (resulting
in a Guidelines range of 110 to 120 months of imprisonment) rather than 14 (in which case
Davison’s Guidelines range would have been 63 to 78 months of imprisonment). In Burris,
however, the en banc court overturned Anderson and held that Ohio’s felonious-assault statute
2 No. 16-4732, United States v. Davison
(under which Davison’s conviction for attempted felonious assault was secured) is not a crime of
violence under the elements clause of USSG §4B1.2(a). See Burris, 2019 WL 92159, at *10, 14.
Burris compels reversal here.
The government argues that if Davison’s conviction is not a crime of violence under the
elements clause, then it is categorically a crime of violence under the enumerated-offenses clause.
That clause lists “aggravated assault” as a crime of violence. USSG §4B1.2(a)(2). But the
enumerated-offenses clause contemplates only actual rather than attempted aggravated assault.
On this basis alone, the enumerated-offenses clause does not apply. Furthermore, our en banc
court held in Burris that “Ohio’s felonious-assault and aggravated-assault are . . . too broad to
categorically qualify as violent-felony predicates under the Guidelines enumerated-offenses
clause.” 2019 WL 92159, at *8. Thus, we have definitively decided that the enumerated-offenses
clause does not apply to Davison’s conviction. We therefore reverse and remand for resentencing.
III
We now turn to Davison’s remaining arguments: he challenges the validity of a search
warrant; the imposition of two other Guidelines enhancements (one for possessing a weapon in
connection with drug trafficking and one for attempting to obstruct justice); and the district court’s
failure to order a competency hearing before allowing Davison to represent himself at trial. We
address these issues in turn, and we affirm as to each.1
1 The district court must of course sentence Davison anew on remand, so our affirmance as to Davison’s remaining two sentence-enhancement claims means that we affirm the district court’s application of those enhancements, not that we affirm Davison’s 120-month sentence. We resolve these two sentencing-enhancement claims so that the district court may again impose the same Guidelines enhancements in calculating Davison’s new sentence. We decline, however, to address Davison’s substantive-unreasonableness argument, because the substantive reasonableness of a sentence depends, among other things, upon its severity in relation to the applicable Guidelines range. Because we can neither predict nor dictate the manner in which the district court will resentence Davison on remand, we cannot prospectively rule on the substantive reasonableness of Davison’s new sentence, nor do we have reason to rule on the substantive reasonableness of Davison’s vacated sentence.
3 No. 16-4732, United States v. Davison
A
We review de novo the district court’s denial of Davison’s motion to suppress evidence
found during the execution of the search warrant at 197 Warden Avenue, but we review underlying
factual findings for clear error. See United States v. Hockenberry, 730 F.3d 645, 657 (6th Cir.
2013). A factual finding is clearly erroneous only if the record as a whole leaves us “with the
definite and firm conviction that a mistake has been committed. This standard plainly does not
entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced
that it would have decided the case differently.” Kerman v. Comm’r, 713 F.3d 849, 867 (6th Cir.
2013) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)). Davison bears the
burden of establishing that an illegal search or seizure violated his Fourth Amendment rights, and
we review the evidence in the light most favorable to the district court’s decision. See United
States v. Sanford, 476 F.3d 391, 394 (6th Cir. 2007).
Davison argues that there was insufficient probable cause to support the search warrant,
and that the police therefore violated his constitutional rights when they entered 197 Warden.
The Fourth Amendment requires search warrants to issue only “upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. amend. IV. Federal courts judge the sufficiency of
probable cause supporting a state search warrant under federal constitutional standards. See United
States v. Abernathy, 843 F.3d 243, 249 (6th Cir. 2016).
To establish probable cause to search a home for drugs, there must be “a fair probability,”
given all the circumstances described in the affidavit, that drugs will be found in the home
searched. Peffer v. Stephens, 880 F.3d 256, 272 (6th Cir. 2018) (quoting United States v. Brown,
828 F.3d 375, 383 (6th Cir. 2016)). So long as the judge who issued the warrant had a “substantial
4 No. 16-4732, United States v. Davison
basis” for believing there to be such a probability, we must affirm. See United States v. Allen, 211
F.3d 970, 973 (6th Cir. 2000) (en banc) (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)).
Here, the affidavit filed by Detective Constantino provides ample support for the belief that
crack cocaine (the drug sold by Davison to the informant in each of the six controlled buys
described in the affidavit) would be found at 197 Warden. The fourth drug buy, for example,
required the informant to drive Davison to 197 Warden, where Davison entered the home and came
back out to complete the transaction in the driveway. And the sixth transaction, which occurred
the day before Detective Constantino filed his affidavit, occurred immediately after surveillance
officers observed Davison leave his workplace in his Chevrolet Impala, drive to 197 Warden, enter
the home, leave the home in the Impala, and then meet the informant to complete the buy.
Davison’s primary argument is that because “there was no reliable information on the four-
corners of the affidavit that 197 Warden was Davison’s home,” Appellant’s Br. 13—that is,
because the affidavit didn’t establish that Davison necessarily resided at 197 Warden—there was
therefore no reliable connection between Davison and the home that was searched. Davison relies
on three cases to support this argument: United States v. Carpenter, 360 F.3d 591, 594 (6th Cir.
2004) (en banc); United States v. Williams, 544 F.3d 683, 687 (6th Cir. 2008); and United States
v. Yates, 501 F. App’x 505, 510 (6th Cir. 2012). None of these cases helps Davison.
In Carpenter, we held en banc that helicopter surveillance identifying marijuana growing
900 feet from a residence was insufficient to establish probable cause to search the residence. But
the affidavit in Carpenter provided only information about the location of the marijuana and the
fact that a road was near the marijuana. Carpenter, 360 F.3d at 594. Indeed, the surveillance
officers in Carpenter observed two men walking down beaten paths from the marijuana plants to
the residence, but that information was absent from the affidavit; we stated that if the affidavit had
5 No. 16-4732, United States v. Davison
included that information, “the affidavit would likely have been sufficient to establish probable
cause.” Ibid. The affidavit in this case is even stronger than the hypothetically sufficient affidavit
in Carpenter.
In Williams and Yates, we upheld search warrants where the affidavits described ongoing
drug trafficking in order to support search warrants for the drug traffickers’ residences. Davison
seizes on these cases to argue that because the affidavit here did not establish that 197 Warden was
Davison’s residence, it was error to issue the warrant. But there is no reason to suppose that
Davison needed to reside (or even stay as an occasional overnight guest, as he claims) at 197
Warden for the warrant to be valid. After all, Davison’s observed behavior dealing drugs before
or after driving cars that were later parked at 197 Warden, together with Davison’s observed
movements entering and exiting 197 Warden in close temporal proximity to the controlled drug
buys, provide more than enough basis on which to establish probable cause to search the house,
regardless of who might or might not reside there.
Davison next attacks the reliability of the confidential informant and points out that the
affidavit does not provide a factual basis for the informant’s trustworthiness or reliability; in
essence, Davison attacks the informant as though the informant had provided merely an
anonymous tip. Appellant’s Br. 14–15. But the affidavit states that the informant had previously
“provided services to the Elyria Police Narcotics Bureau.” And we have held that the statements
of an informant “whose identity was known to the police and who would be subject to prosecution
for making a false report, are . . . entitled to far greater weight than those of an anonymous source.”
United States v. May, 399 F.3d 817, 824–25 (6th Cir. 2005); see also United States v. Coffee, 434
F.3d 887, 894 (6th Cir. 2006) (upholding search warrant where affidavit included officer’s
statements that he set up a controlled narcotics buy and that he adequately corroborated
6 No. 16-4732, United States v. Davison
information provided by a confidential informant, even though “there were no statements in the
affidavit about the reliability of the CI”).
Finally, Davison argues that “any probable cause that might otherwise have been provided
by the alleged” fourth buy “had become stale” by the time police sought the search warrant.
Appellant’s Br. 16; see United States v. Abboud, 438 F.3d 554, 572–73 (6th Cir. 2006) (probable
cause established by defendant’s bank fraud in 1999 was not stale in 2002 when, after receiving
an affidavit that established a continuous criminal enterprise spanning the three intervening years,
a magistrate judge issued a search warrant to search the defendant’s home).
The idea behind the staleness argument is that drugs are consumed over time, and probable
cause must exist at the time a search is carried out, so, Davison argues, the earlier controlled buys
can’t support a finding of probable cause to suspect that drugs will still be found a month or more
later. See United States v. Leaster, 35 F. App’x 402, 409 (6th Cir. 2002). But the sixth buy in the
present case occurred the day before Detective Constantino sought the warrant to search 197
Warden. That the fourth buy occurred more than a month before the warrant was sought only
helped to establish an ongoing drug-trafficking enterprise involving 197 Warden, and the probable
cause established by the sixth buy inarguably remained fresh the next day.
In sum, the district court did not err in denying Davison’s motion to suppress. The
information provided within the four corners of the affidavit was more than enough to provide
probable cause to search 197 Warden for evidence of drug trafficking.
B
We turn next to Davison’s argument that his sentence is procedurally unreasonable because
the district court wrongly applied a four-level enhancement for possession of a firearm in
connection with drug trafficking and a two-level enhancement for attempted obstruction of justice.
7 No. 16-4732, United States v. Davison
We review the procedural reasonableness of the district court’s sentencing decision “under a
deferential abuse-of-discretion standard.” United States v. Yancy, 725 F.3d 596, 598 (6th Cir.
2013) (citing Gall v. United States, 552 U.S. 38, 41 (2007)). The government must establish facts
supporting a Guidelines enhancement by a preponderance of the evidence. See United States v.
Shields, 664 F.3d 1040, 1043 (6th Cir. 2011).
A four-level enhancement under USSG §2K2.1(b)(6)(B) is warranted when the possession
of a firearm “had some emboldening role in [a] defendant’s felonious conduct.” United States v.
Angel, 576 F.3d 318, 321 (6th Cir. 2009) (upholding the enhancement where “the guns were found
in an upstairs bedroom, a considerable distance from the marijuana plants found at the edge of the
property line; only one of the firearms seized from the bedroom was loaded, and [the defendant]
testified that his wife used it for protection; [and] there was no evidence that [the defendant]
manufactured marijuana inside the house”).
Here, the district court did not clearly err in its factual finding that Davison possessed the
firearms in connection with the possession and distribution of drugs. Police found drugs in the
bedroom where the guns (and Davison) were found, in the kitchen, and in the Chevrolet Impala
that was parked in the driveway. The Impala was registered to Davison, and officers observed
Davison drive the Impala in connection with three of the drug buys. Davison argues, again, that
he did not reside at 197 Warden, but, again, that fact is of no consequence given the drug trafficking
that police officers observed Davison engage in. Appellant’s Br. 43–45. By at least a
preponderance of the evidence, the government carried its burden below, and the district court did
not abuse its discretion in applying the four-level enhancement.
8 No. 16-4732, United States v. Davison
The district court likewise did not abuse its discretion in applying the two-level
enhancement for Davison’s attempt to obstruct justice. The enhancement applies when
(1) 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 instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense.
USSG §3C1.1.
Davison, while in jail, called his girlfriend and dictated the text of an affidavit for her to
deliver to the government’s confidential informant, who in turn signed the document (in which he
swore that he had not engaged in drug activity with Davison) before a notary. The informant, in
court, later testified that the affidavit was false.
At Davison’s sentencing hearing, the government played the entire phone call between
Davison and his girlfriend. The court used that call, together with the confidential informant’s
testimony, as evidence to support its imposition of the enhancement. We have previously upheld
the imposition of the two-level obstruction-of-justice enhancement when a defendant submitted a
false affidavit or knowingly received the aid of a fellow inmate who submitted a false affidavit on
his behalf. See United States v. Fredell, 79 F. App’x 799, 807–06 (6th Cir. 2003); United States
v. Delarosa, 575 F. App’x 571, 580 (6th Cir. 2014). Davison, as he argued below, argues that his
efforts to have the informant sign an affidavit were a legitimate part of his defense. Appellant’s
Br. 49–52. But Davison points to neither evidence nor legal authority in support of his position.
That the informant later testified that the affidavit was false, Davison argues, does not prove that
the affidavit was in fact false. That is, of course, logically correct. But in light of the unrebutted
evidence that the district court considered, Davison cannot carry his burden on appeal of showing
9 No. 16-4732, United States v. Davison
that the district court clearly erred in determining that Davison willfully attempted to obstruct
justice, or that the district court otherwise abused its discretion in applying the two-level
enhancement.
C
Finally, Davison contends that the district court erred in failing to hold a competency
evaluation before allowing Davison to waive his right to counsel. We review for plain error
because this issue was not preserved below.
Although the record contains ample evidence that it was probably unwise for Davison to
represent himself at trial, the record also indicates that Davison waived his right to counsel
“competently and intelligently.” Godinez v. Moran, 509 U.S. 389, 396 (1993) (quoting Johnson
v. Zerbst, 304 U.S. 458, 468 (1938)). Davison argues that a “district court has not only the
prerogative, but the duty, to inquire into a defendant’s competency whenever there is ‘reasonable
cause to believe’ that the defendant is incompetent to stand trial,” United States v. White, 887 F.2d
705, 709 (6th Cir. 1989) (per curiam), and that the “nature and tenor” of Davison’s behavior, such
as during a recorded interview with police officers, or when he “lost his temper in court and used
profanity,” established such “reasonable cause.” Appellant’s Br. 55–56.
Davison’s poor behavior, espousal of bizarre legal theories, and ultimately unsuccessful
trial lawyering, however, are not probative of Davison’s competency to waive his right to counsel.
Rather, the district court followed the “model inquiry,” United States v. Ross, 703 F.3d 856, 867
(6th Cir. 2012) (describing series of questions that a district court should ask a defendant who
wishes to represent himself, as set forth in the Bench Book for United States District Judges), in
conducting the required colloquy with Davison—including advising Davison strongly against
representing himself. And the district court had no “reason to doubt [Davison’s] competence,”
10 No. 16-4732, United States v. Davison
ibid., that would require it, sua sponte, to hold a competency evaluation. Thus, the district court
did not plainly err in allowing Davison to waive his right to counsel.
IV
Accordingly, we REVERSE as to the sole issue of whether Davison’s attempted-
felonious-assault conviction qualifies as a crime of violence under the Guidelines, and we issue a
LIMITED REMAND so that the district court may resentence Davison without the crime-of-
violence enhancement. See United States v. Campbell, 168 F.3d 263, 266 (6th Cir. 1999) (“The
point of the limited remand is to inform the district court that a discrete issue has caused the need
for review, but that complete reconsideration on resentencing is unnecessary and unwarranted.
Such practice, if properly undertaken, not only can significantly expedite the district court’s future
work on the case, but also can substantially limit the possibility that this court will be confronted
repeatedly with the same defendant, and the same sentence.”).
In all other respects, we AFFIRM.