United States v. Floyd Dewayne Davis

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 7, 2009
• Docket: 09-11628
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT Oct. 7, 2009 No. 09-11628 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

D. C. Docket No. 05-00211-CR-CB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FLOYD DEWAYNE DAVIS,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Alabama _________________________

(October 7, 2009)

Before CARNES, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM: Floyd Dewayne Davis challenges the reasonableness of his 24-month

sentence imposed for violating conditions of his supervised release.

I.

In 2005 Davis was convicted of three counts related to his making false

statements when purchasing a firearm and was sentenced to 41 months

imprisonment followed by 3 years of supervised release. Two conditions of his

supervised release were that he must not commit another crime and must not

associate with felons or with persons engaged in criminal activity. He was released

from prison in July 2008.

In January 2009 Davis was arrested after he was found riding in a car with

three ounces of hydroponic marijuana. At the supervised release revocation

hearing, Davis and the driver of the car, Antron Evans, testified that Davis did not

know the marijuana was in the car. The district court did not believe them.

Instead, the district court credited testimony from a narcotics officer that he could

smell the marijuana from 5 feet outside the car and that this “very high quality”

hydroponic marijuana smelled so strong that one ounce of it would smell like two

pounds of average marijuana. Although the guidelines range for Davis’ violation

was 4–10 months imprisonment, the district court sentenced him to the maximum

punishment of 24 months imprisonment after finding that Davis had perjured

2 himself during the hearing.

II.

We review a revocation of supervised release for abuse of discretion. United

States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). We review a sentence

imposed upon revocation of supervised release for reasonableness. United States

v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006). Davis contends that his

sentence is both procedurally and substantively unreasonable.

A.

We begin with whether the district court committed a procedural error.

Davis argues that his sentence was procedurally unreasonable because the district

court failed to consider the § 18 U.S.C. § 3553(a) factors. That argument relies on

the premise that Davis’ release was revoked under 18 U.S.C. § 3583(e). The

government disputes that premise. It argues that Davis’ release was revoked under

18 U.S.C. § 3583(g). It further argues that because § 3583(g) provides for

mandatory revocation, the district court was not required to consider the § 3553(a)

factors. We agree.

The district court’s revocation order states that Davis’ supervised release

was being revoked because he committed a new criminal offense, and it is clear

from the record that the offense was possession of marijuana, a controlled

3 substance. That violation made revocation mandatory. See § 3583(g)(1); United

States v. Brown, 224 F.3d 1237, 1242 (11th Cir. 2000) (“Although not mentioned

by the district court, [the defendant’s] revocation was mandatory because he

possessed a controlled substance. . . .”). Therefore, even assuming that the district

court did not consider the § 3553 factors, it was not required to. See Brown, 224

F.3d at 1241 (“However, when revocation of supervised release is mandatory

under 18 U.S.C. § 3583(g), the statute does not require consideration of the §

3553(a) factors.” (internal quotation marks omitted).

Davis also argues that the guidelines sentencing range was not calculated or

identified. It is true that the district court did not specifically reference the

applicable guidelines range. But the district court is not held to a particularly

exacting standard on this issue. “[B]ecause the Guidelines have always been

advisory for sentences imposed upon revocation of supervised release, it is

sufficient that there be some indication that the district court was aware of and

considered” the guidelines range. United States v. Campbell, 473 F.3d 1345, 1349

(11th Cir. 2007) (internal citation and quotation marks omitted). Here there was.

It is undisputed that before the revocation hearing the United States

Probation Office calculated the guidelines sentencing range as part of the petition

for warrant or summons. It is undisputed that the guidelines range was 4–10

4 months. It is undisputed that both parties and the district court had a copy of the

sentencing range calculation at the sentencing hearing. Finally, in making its

sentencing determination, the court stated that it found “that a high end of — the

guidelines are way too low, in my judgment in this case. I find that it’s reasonable

to sentence [Davis] to the full 24 months.” The evidence is compelling that the

district court was aware of and had considered the guidelines sentencing range but

found it too lenient.

Davis’s final two arguments on this issue are also meritless. First, he argues

that the district court failed to treat the sentencing guidelines as advisory. That

argument is inconsistent with the fact that the district court sentenced Davis above

the guidelines range. Second, he argues that the sentence imposed was based on

clearly erroneous facts. The basis for that argument largely is his and Evans’

testimony that they could not smell marijuana in the car and that Davis did even

not know there was marijuana in the car. But the district court did not believe him

or Evans. It believed the narcotics officer’s testimony that the odor of the

marijuana was so strong that he could smell it from outside the car and five feet

away. The marijuana was sitting right next to Davis in the center console of the

car. The district court’s credibility determinations were not clearly erroneous and

support its finding that Davis knew there was marijuana in the car and its

5 conclusion that he was in constructive possession of it.

B.

Davis’ contention that his sentence is substantively unreasonable also fails.

He argues that the 24-month sentence is not justified given the “dubious nature” of

the possession charge and the fact that his guidelines range was 4–10 months. The

charge is “dubious,” according to Davis, because both he and Evans testified that

they did not smell marijuana and testified that Davis did not know it was in the car.

As we have already discussed, the district court did not believe them and instead

believed the officer. In fact, the district court sentenced Davis to the statutory

maximum in part because it found that Davis had perjured himself before the court.

The conditions of Davis’ supervised release required him not to commit any

crimes and not to associate with felons. He was caught riding in a car with a

convicted felon and with some “very high quality” marijuana. Then Davis came to

court and lied. In view of Davis’ conduct, it was not unreasonable for the court to

sentence him to 24-months imprisonment. See United States. v. Silva, 443 F.3d

795, 796–99 (11th Cir. 2006); United States v. Hofierka, 83 F.3d 357, 359–62

(11th Cir. 1996).

AFFIRMED.