United States v. Terry Davy

713 F. App'x 439
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 1, 2017
Docket16-4081
StatusUnpublished
Cited by12 cases

This text of 713 F. App'x 439 (United States v. Terry Davy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Terry Davy, 713 F. App'x 439 (6th Cir. 2017).

Opinion

JULIA SMITH GIBBONS,-Circuit Judge.

Terry' Davy pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The United States Probation Office recommended a total offense level of 26, calculated from a base offense level of 24 under USSG § 2K2.1(a)(2) due to Davy’s two prior felony convictions, plus a two-level enhancement pursuant to USSG § 2K2.1(b)(4)(A) because the firearm in question was stolen. At sentencing, the government agreed to a three-level reduction for acceptance of responsibility under USSG § 3E1.1. The district court followed the recommendation and sentenced Davy to an in-guideline 110 months’ imprisonment. Davy did not object to the sentencing calculation.

Davy has now challenged his sentencing on appeal. Additionally, the government has filed a motion for this Court to take judicial notice of facts contained in state court documents pertaining to one of Davy’s prior felony convictions. For the reasons addressed below, we grant the government’s motion to take judicial notice and affirm the district court’s sentence.

I.

On February 21, 2016, Cleveland police initiated a traffic stop when Terry Davy failed to use a turn signal before making a turn. After pulling over, however, Davy and another individual fled the vehicle on foot. While fleeing, Davy attempted to hide a loaded firearm in a fenced courtyard. Officers subsequently detained Davy and his passenger and recovered the firearm.

Davy was indicted on March 9, 2016, on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On May 2, 2016, Davy pled guilty to the indictment without a plea agreement.

The United States Probation Office prepared a presentence report (PSR), which calculated a base offense level of 24 under USSG § 2K2.1(a)(2) due to Davy’s two pri- or felony convictions for crimes of violence or controlled substance offenses. The PSR also recommended a two-level enhancement pursuant to USSG § 2K2.1(b)(4)(A) because the “firearm possessed by [Davy] was stolen.” DE 24, PSR, Page ID 119. The PSR did not include any reduction in the offense level for acceptance of responsibility, but at the sentencing hearing, the government agreed to a three-level reduction on that ground. Accordingly, the district court found a total offense level of 23, corresponding with a recommended guideline range of 92 to 115 months.

Except for requesting a reduction for acceptance of responsibility, Davy did not object to the sentencing calculations in the PSR nor did he object to the sentencing calculations employed at the hearing. Instead, Davy merely argued for a downward variance based upon his personal history and characteristics. The district court, however, denied this request and sentenced Davy to 110 months of incarceration with three years of supervised release.

Immediately following the issuance of the sentence, the district court asked Davy’s counsel if he had any objection, to which counsel responded: “It’s an in-Guideline sentence based on calculations[,] so no objection.” DE 38, Sentencing Tr., Page ID 243. Despite the lack of objections at or before the hearing, however, Davy appealed, challenging his sentencing calculation on various grounds.

In response to one of Davy’s challenges, the government has filed a motion for this Court to take judicial notice of the fact that Davy was convicted under a specific subsection of Ohio’s felonious assault statute. The motion was subsequently referred to this panel.

II.

Because Davy failed to object to his sentencing calculation in the PSR or at the sentencing hearing, his appeal is reviewed for plain error. United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008); see also FED. R. CRIM. P. 52(b). To satisfy plain error review, the appellant must show “(1) error (2) that ‘was obvious or clear,’ (3) that ‘affected defendant’s substantial rights’ and (4) that ‘affected the fairness, integrity, or public reputation of the judicial proceedings.’ ” Vonner, 516 F.3d at 386 (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).

III.

Davy challenges his sentence on three grounds. First, he contends that the district court erred in finding that his prior felonious assault conviction in Ohio qualified as a crime of violence under USSG § 2K2.1(a)(2) because Ohio’s felonious assault statute is divisible and the distinct court did not apply a modified categorical analysis to determine under which subsection of the statute he was convicted. Second, he contends the district court failed to adequately explain its reasoning for denying his request for a downward variance. Third, he contends the district court erred in relying on the presentence report to find the firearm in his possession was stolen for purposes of the USSG § 2K2.1(b)(4)(A) enhancement because the allegations in the report lacked sufficient indicia of reliability. As explained below, all three challenges are unavailing.

A.

Pursuant to USSG § 2K2.1(a)(2), a defendant qualifies for a base offense level of 24 if the crime was committed “subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) (U.S. SENTENCING COMM’N 2016). Here, the sentencing calculation in the PSR relied on two prior felony convictions for applying the § 2K2.1(a)(2) enhancement: (1) a federal conviction for possessing with intent to distribute cocaine base and (2) an Ohio conviction for felonious assault. Although Davy failed to challenge the application of USSG § 2K2.1(a)(2) pri- or to his sentencing, and even calculated a base offense level of 24 in his own sentencing memorandum, 1 he now asserts for the first time on appeal that the district court committed plain error when it failed to review the applicable state court documents under a modified categorical approach and instead relied solely on the allegations in the PSR to determine that his Ohio felonious assault conviction qualified as a crime of violence. However, while the district court did err in failing to apply the modified categorical approach to calculate Davy’s base offense level, this failure does not constitute plain error because the state court documents provided by the government in its motion demonstrate that Davy’s felonious assault conviction does, in fact, qualify as a crime of violence.

A “crime of violence” under USSG § 2K2.1(a)(2) is defined as:

[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

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Bluebook (online)
713 F. App'x 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-terry-davy-ca6-2017.