United States v. James E. Davis ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10917
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-00362-CAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES E. DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 16, 2013)
Before HULL, JORDAN and FAY, Circuit Judges.
PER CURIAM:
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James Earl Davis appeals the district court’s revocation of his supervised
release and imposition of a 36-month sentence, pursuant to U.S.C. § 3583(e)(3).
After review, we affirm.
I. BACKGROUND
A. Supervised Release
In 2007, Davis pled guilty to aiding and abetting bank fraud, in violation of
18 U.S.C. §§ 2 and 1344, and was sentenced to 63 months’ imprisonment and three
years of supervised release. Conditions of Davis’s supervised release included,
inter alia, prohibitions against: (1) leaving the judicial district without permission
of the court or the probation officer, and (2) opening new lines of credit without
approval of the probation officer, as well as requirements to: (3) truthfully answer
the probation officer’s inquiries and (4) follow the probation officer’s instructions.
After completing his prison term, Davis began his supervised release on
May 12, 2011. On October 15, 2012, Davis moved the district court (then the
Eastern District of Virginia) for permission to travel to Rhode Island to attend a
custody hearing for his child, whom he believed was being abused. His motion
stated that his probation officer had denied his requests. Davis attached a copy of
the summons from the Rhode Island family court for hearings on November 9,
2012, and January 15, 2013.
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On October 31, 2012, the district court denied Davis’s motion to travel
without prejudice and transferred jurisdiction of Davis’s supervised release to the
Northern District of Georgia. On November 5, 2012, the district court in the
Northern District of Georgia denied Davis’s motion, “[a]fter carefully considering
[Davis’s] motion, together with consulting with the probation officer.”
B. Petition for Revocation
On January 16, 2013, Davis’s probation officer, David Mitchell, petitioned
for Davis’s arrest and for revocation of his supervised release. The petition
alleged, inter alia, that Davis had obtained car loans without Officer Mitchell’s
approval (Charge 1), had travelled to Rhode Island on January 15, 2013 without
prior approval of the court or Officer Mitchell (Charge 3), and on December 3,
2012 had refused to answer Officer Mitchell’s questions, stating instead that he
was “a sovereign citizen” and did not recognize his federal sentence (Charge 4).1
Prior to the revocation hearing, Davis, although represented by counsel, filed
several pro se motions, including a motion to dismiss for lack of jurisdiction and a
motion asking the district court, Judge Charles Pannell, to recuse. Davis’s motion
to dismiss argued that the district court did not have jurisdiction over Davis
because he was a “Sovereign Citizen” who owned the “entity JAMES E DAVIS.”
Davis attached UCC Financing Statements that listed “JAMES EARL DAVIS JR.”
1
The government did not pursue Charge 2, which alleged that Davis had failed to
participate in mental health treatment.
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as the debtor and James Earl Davis Jr. as the secured party. The motion to dismiss
asked the court several questions, including whether Judge Pannell had taken an
oath of office. The motion to recuse alleged that Judge Pannell had violated his
oath of office and had conspired with Officer Mitchell to violate Davis’s
constitutional rights.
C. Revocation Hearing
On March 1, 2013, the district court held a revocation hearing. At the
outset, the district court indicated that it had received mail from Davis, as a
“secured party,” most of which had also been included in Davis’s pro se motions.
The district court confirmed that, through his pro se motions, Davis wanted the
court to grant him a copyright over his name spelled in capital letters so Davis
could then prevent the court from using his name. The district court denied all of
Davis’s pro se motions.
The district court also denied Davis’s oral motion to discharge his appointed
counsel and represent himself, but agreed to let Davis proceed with “hybrid
representation.” When Davis asked the district court whether it had taken an oath
of office, the district court stated it was “not answering those questions” from
Davis’s pro se motions, finding that the questions were “frivolous” and intended
“to harass the Court.”
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Davis denied Charges 1, 3, and 4. Over Davis’s hearsay objection, the
government introduced documents from an auto dealership indicating that a man
named James Earl Davis had purchased a 2007 BMW with financing from
Independent Bank. Many of the various documents listed James Earl Davis’s
residence as 5009 Galleon Crossing in Decatur, Georgia and contained a signature
of the buyer, James Earl Davis.
Among the documents were: (1) a signed title and tag application for the
BMW that listed James Earl Davis as the owner of the vehicle and Independent
Bank as the security/lien holder on the vehicle; (2) a certificate of title for the
BMW indicating it was last transferred from the dealership to James Earl Davis on
October 17, 2012 and signed by “James Earl Davis” as the buyer; (3) a bill of sale
indicating James Earl Davis purchased the BWM from the dealership on October
17, 2012 for $22,795 and signed by Davis as the buyer; (4) a “deal summary” and
a retail sales installment contract reflecting that James E. Davis had purchased the
BMW with a $1,600 cash down payment and had financed $22,795 at a 13.49%
interest rate; (5) a signed “DealerTrack” application for credit by James Davis to
purchase the BMW, which stated that Davis was employed at World Wide
Enterprise as a consultant making $4,000 a month; (6) an application status report
indicating that James Davis’s application for credit to buy the BMW was made to
Independent Bank; (7) a tax and tag receipt from the State of Georgia and a
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verification of insurance from Progressive Insurance, both indicating that
Independent Bank was the lienholder on the BMW; and (8) a photocopy of a
driver’s license, the condition of which is so poor neither the writing nor the
picture can be seen.
The government called Brian Brooks, the employee at the dealership who
had prepared the car purchase documents. When asked whether he recognized
Defendant Davis as the man for whom he had prepared the documents, Brooks
said, “I imagine, yes, but it’s been awhile,” and added that he was not “a hundred
percent certain.” Brooks explained that he ordinarily made a copy of the buyer’s
driver’s license and ensured that it was for the person completing the forms.
Officer Mitchell testified that Davis obtained the loan to purchase the BMW
in October 2012 without first obtaining his approval. In November 2012, Officer
Mitchell and another probation officer met with Davis at his residence to discuss
the new lines of credit. Davis was hostile and would not cooperate. On December
3, 2012, Officer Mitchell again met with Davis to discuss the car loan and Davis’s
“overall attitude.” Davis stated that he was a “sovereign citizen” and would not
answer any questions unless Officer Mitchell first answered a questionnaire.
Officer Mitchell testified that he did not fill out Davis’s questionnaire because it
“[s]eemed a harassing technique.”
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Officer Mitchell identified several documents containing Defendant Davis’s
signature, including Davis’s judgment and commitment and correspondence Davis
had sent to the Probation Office between September and November 2012. In a
September 5, 2012 letter to Officer Mitchell’s supervisor, Davis complained about
Officer Mitchell denying his request to travel to Rhode Island. The letter accused
Officer Mitchell of discriminating against Davis based on race and then retaliating
against Davis when Davis complained about the discrimination. The letter stated
that Davis had filed a civil rights lawsuit against Officer Mitchell, and attached a
copy stamped filed on June 12, 2012. Davis requested that the supervisor assign
him a new probation officer due to the conflict of interest.
In an October 15, 2012 letter to Officer Mitchell, Davis stated that he “did
not wish to do business with” Officer Mitchell and informed Officer Mitchell that
in future Officer Mitchell would be billed $500,000 for each time Officer Mitchell
used Davis’s name, which Davis claimed was copyrighted. Davis attached copies
of UCC Financing Statements, signed by Davis.
Davis also sent Officer Mitchell a “Notice and Demand,” notarized and
dated November 30, 2012, demanding that Officer Mitchell answer a series of
questions. This correspondence accused Mitchell of, among other things, violating
his oath of office and of discriminating against Davis.
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Officer Mitchell testified that he first discussed with Davis his concerns
about his son’s safety in June 2012, after Davis had reported those concerns to the
Rhode Island police. Davis told Officer Mitchell that his son’s stepfather, who was
white, had used racial slurs about Davis’s son in a telephone call. Around that
time, Davis first asked Officer Mitchell if he could travel to Rhode Island. Later,
in January 2013, Davis filed his complaint in Rhode Island family court, alleging
that his son was being abused by his stepfather. A copy of Davis’s Rhode Island
complaint was admitted into evidence.
Davis subsequently made numerous requests for permission to travel to
Rhode Island to represent himself in family court. In their last conversation,
Officer Mitchell encouraged Davis to either obtain an attorney to represent him or,
if he represented himself pro se, to appear via teleconference or video conference.
Officer Mitchell stated that he never gave Davis permission to leave the district.
The government introduced a copy of a transcript showing that Davis appeared in
person at the January 15, 2013 hearing in Rhode Island.
After Davis did not report to Officer Mitchell as directed in December 2012
or February 2013, Davis was arrested. On February 27, 2013, a few days prior to
the revocation hearing, Officer Mitchell received correspondence from Davis,
entitled “Default Affidavit,” sent from the detention facility. This document
referenced Davis’s October and November 2012 letters and stated that Officer
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Mitchell was in “default” and owed Davis $3,290,000 for violating Davis’s
constitutional rights.
In response to the district court’s questions, Officer Mitchell stated that
while under supervision, Davis resided with his mother at 5009 Galleon Crossing
in Decatur, Georgia. At the time, Davis was unemployed, on disability, and
receiving government assistance. Davis never reported to Officer Mitchell that
Davis was employed by Worldwide Enterprises as a consultant making $4,000 a
month. When Officer Mitchell contacted the building where the loan application
indicated Worldwide Enterprises was located, the manager told Officer Mitchell
that there was no such business.
Maddie Gaines, Davis’s mother, testified that when either she or Davis
called Davis’s son in Rhode Island, his stepfather would answer the telephone and
would use racial slurs against them and against Davis’s son. Davis introduced a
recording of one of these telephone conversations, which was played for the court.
Gaines said that the telephone conversation occurred in November 2012.
Gaines said that she was in the room when Davis called to ask if he could
appear telephonically in the Rhode Island family court. Gaines said Davis was told
that he had to appear in person. Upon the district court’s questioning, Gaines
admitted that the Rhode Island Juvenile Court Services investigated the home in
Rhode Island and gave a favorable report to the family court.
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At the close of the evidence, Davis’s counsel indicated that Davis did not
dispute that he went to Rhode Island without permission to attend the hearing.
Davis’s counsel stressed that Davis had shown that his fears for his child in Rhode
Island were well-founded, the probation office had not taken Davis’s concerns as
seriously as it should have, and Davis had tried to appear at the Rhode Island
hearing telephonically. Davis’s counsel further stated that she did not have any
argument as to Charges 1 and 4, but noted, as mitigation, that Davis had complied
with his monthly reporting requirements and suffered from a seizure disorder.
D. District Court’s Findings and Sentence
The district court found that Davis had violated the conditions of supervised
release by opening lines of credit, leaving the district without permission, and
failing to truthfully answer Officer Mitchell’s questions at the December 3, 2012
meeting and instead harassing and obstructing Officer Mitchell.
The district court determined that Davis’s guidelines range was 8 to 14
months and that his statutory maximum prison term was 36 months. Davis asked
for a sentence at the low end of the guidelines range. As mitigating factors, Davis
pointed out that Davis: (1) “did not respond in any kind of violent manner”
regarding his son; (2) pursued the legal remedy suggested by his probation officer;
and (3) had asked to appear telephonically at the hearing, but was not allowed.
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The district court imposed a 36-month sentence. As its reasons for the
sentence, the district court stated that Davis: (1) had “demonstrated that he has no
desire to abide by the terms of his supervised release”; (2) had “engaged in a
pattern of conduct to obstruct the probation officer and the Court”; and (3)
presented “a danger to the community by engaging in conduct to defraud creditors
by falsely listing Worldwide Enterprise as an employer to gain credit to buy this
automobile.” The district court noted that in the car loan documents, Davis had
listed Worldwide Enterprises as his employer making $4,000 a month, when the
evidence showed that was not true. The district court stated it “believe[d] that
[Davis], without further incarceration, will engage in similar conduct in the
future.”
Davis’s counsel objected to the length of the sentence and to the fact that
Davis had not been allowed to allocute. The district court then allowed Davis to
allocute. Among other things, Davis said he believed the sentence was excessive
given that he had tried to get permission from the probation office to leave the
district. The district court then re-imposed the 36-month sentence and repeated its
explanation for the sentence. Davis again objected to the length of the sentence.
II. DISCUSSION
A. Sufficiency of the Evidence as to Charge 1
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Davis argues that the district court’s finding that he opened a new line of
credit was not supported by substantial evidence. Under 18 U.S.C. § 3583(e), a
district court may revoke a defendant’s term of supervised release upon finding by
a preponderance of the evidence that the defendant violated a condition of
supervised release. 18 U.S.C. § 3583(e)(3). 2
Here, sufficient evidence supported the finding that Davis purchased a 2007
BMW by obtaining financing through the dealership and Independent Bank. The
government introduced numerous documents related to the purchase and financing
of the BMW in Davis’s name. Officer Mitchell testified that Davis did not get his
approval before applying for this line of credit with Independent Bank.
Davis contends that the government’s evidence did not show that he was the
James Earl Davis reflected in the documents. We disagree. Brian Brooks testified
that he believed Davis was the man for whom he prepared the car loan documents.
Although Brooks stated that he could not be “a hundred percent certain,” other
circumstantial evidence corroborated Brooks’s testimony that Defendant Davis
was the man who purchased the BMW with the car loan. First, the buyer James
Earl Davis’s personal information in the car purchase documents was the same as
2
We ordinarily review a district court’s revocation of a supervised release term for an
abuse of discretion, United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994), and the district
court’s fact findings for clear error, United States v. Alamand, 992 F.2d 316, 318 (11th Cir.
1993). During the revocation hearing, however, Davis objected to only the length of his sentence
and not to the revocation of his supervised release or to the district court’s fact findings.
Accordingly, we review for plain error. See United States v. Gresham, 325 F.3d 1262, 1265
(11th Cir. 2003).
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Defendant Davis’s information, such as his address at 5009 Galleon Crossing in
Decatur, Georgia and his date of birth. Second, the buyer James Earl Davis’s
signature appeared to match Defendant Davis’s signature.
The government introduced, and Officer Mitchell identified, the judgment
and commitment from Davis’s original conviction, as well as several letters sent
from Davis to the probation office, all of which were signed by Davis. This
evidence was sufficient to allow the district court to compare Davis’s known
signatures with the buyer’s signatures on the car purchase documents. Moreover,
the signatures of the car buyer James Earl Davis appear to be very similar, if not
identical, to the known signatures of Defendant Davis. This evidence was
sufficient to support a finding that Defendant Davis completed the paperwork to
obtain the loan and purchase the car. Under these circumstances, the district court
did not err, much less plainly err, in finding that Davis opened a new line of credit
in violation of his supervised release condition.
B. First Amendment Claim as to Charge 3
For the first time, Davis argues that the district court’s finding that Davis
violated a condition of supervised release by leaving the district to attend the
family court hearing in Rhode Island infringed his First Amendment right to access
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to the courts.3 Because Davis did not raise his constitutional argument at his
revocation hearing, our review is limited to plain error. See Gresham, 325 F.3d at
1265. Under this standard, Davis must show that: “(1) an error occurred; (2) the
error was plain; (3) it affected his substantial rights; and (4) it seriously affected
the fairness of the judicial proceedings.” Id. Here, even assuming arguendo that
Davis could satisfy the first prong of the plain error test, he has not shown either
that the alleged error was plain or that it affected his substantial rights.
First, Davis does not cite any Supreme Court or Eleventh Circuit precedent
establishing that a finding of a violation of supervised release in the circumstances
Davis presented would impermissibly infringe a defendant’s right to court access.
“It is the law of this circuit that, at least where the explicit language of a statute or
rule does not specifically resolve an issue, there can be no plain error where there
is no precedent from the Supreme Court or this Court directly resolving it.” United
States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).
Davis cites Ex Parte Hull, but that case is not like Davis’s case and does not
establish plain error. In Ex Parte Hull, the Supreme Court invalidated a state
prison regulation that required prisoners to submit their court pleadings to prison
officials to determine if they were “properly drawn.” The Supreme Court
3
Contrary to the government’s contentions, Davis’s counseled brief does not challenge
either his original travel condition or the denial of his travel request. Rather, Davis argues only
that, given the circumstances, the district court’s finding at the revocation hearing that Davis
violated the travel condition infringed his constitutional right to court access.
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concluded that the prison regulation abridged a habeas petitioner’s right to apply to
federal court. Ex Parte Hull, 312 U.S. 546, 548-49, 61 S. Ct. 640, 641-42 (1941).
Ex Parte Hull did not involve a district court’s finding that a defendant on
supervised release had violated a standard travel condition to prosecute a family
court petition and thus does not “directly resolv[e]” the issue presented here.
In any event, Davis cannot demonstrate that he was prejudiced by the
alleged error. “An error that affects substantial rights is one that affected the
outcome of the district court proceedings.” United States v. Henderson, 409 F.3d
1293, 1308 (11th Cir. 2005) (internal quotation marks omitted). To show
prejudice, the defendant must show “a reasonable probability of a different result.”
United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). Davis cannot
meet this standard because any single Grade C violation can be the basis for
revoking a term of supervised release and imposing a prison term. See U.S.S.G.
§§ 7B1.3(a)(2), 7B1.4(a).
Charges 1, 3, and 4 are all Grade C violations. See U.S.S.G.
§ 7B1.1(a)(3)(B). The district court found that in addition to violating the travel
condition (Charge 3), Davis violated two other conditions by opening lines of
credit (Charge 1) and failing to answer his probation officer’s questions (Charge
4). Thus, each violation provided a sufficient basis for revoking Davis’s
supervised release and imposing a sentence. See United States v. Brown, 656 F.2d
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1204, 1207 (5th Cir. 1981) (providing that where there is a sufficient ground to
justify revocation, we need not consider possible error in the other grounds). 4
Davis has not pointed to any evidence that, absent the finding that Davis violated
the travel condition (Charge 3), the district court would not have revoked his
supervised release and imposed a 36-month prison term.
Davis does not challenge the district court’s finding with respect to Charge
4, and his challenge to the district court’s finding as to Charge 1 lacks merit for the
reasons discussed above. Thus, the district court’s decision to revoke Davis’s
supervised release term is sufficiently supported by its findings that Davis was
guilty of Charges 1 and 4. In addition, the district court, in explaining its decision
to impose an upward variance, focused on Davis’s conduct related to Charges 1
and 4 and did not mention Davis’s unauthorized travel outside the district,
suggesting that Charge 3 was not a significant factor in Davis’s sentence.
C. Reasonableness of Davis’s 36-month Sentence
Before imposing a prison term upon revocation, the district court must
consider certain factors in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e).5 The
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit decided on or before
September 30, 1981.
5
Specifically, in a revocation proceeding, the relevant factors the district court must
consider are: (1) the nature and circumstances of the offense and the history and characteristics
of the defendant; (2) the need for the sentence imposed to afford adequate deterrence, protect the
public, and provide the defendant with needed educational or vocational training and medical
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district court also must consider the policy statements in Chapter 7 of the
Sentencing Guidelines, which provide recommended, non-binding ranges of
imprisonment. United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006).
“We review the sentence imposed upon revocation of supervised release for
reasonableness.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252
(11th Cir. 2008). Our reasonableness review applies the deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 46, 128 S. Ct. 586,
591, 594 (2007). In reviewing for reasonableness, we first consider whether the
district court committed any significant procedural error and then whether the
sentence is substantively unreasonable in light of the relevant § 3553(a) factors and
the totality of the circumstances. United States v. Pugh, 515 F.3d 1179, 1190 (11th
Cir. 2008).6 The party challenging the sentence has the burden to show it is
unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
If the district court decides to impose an upward variance, “it must ‘consider
the extent of the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.’” United States v. Williams, 526
F.3d 1312, 1322 (11th Cir. 2008) (quoting Gall, 552 U.S. at 50, 128 S. Ct. at 597).
care: (3) the Sentencing Guidelines range and pertinent policy statements of the Sentencing
Commission; (4) the need to avoid unwarranted sentence disparities; and (5) the need to provide
restitution. See 18 U.S.C. § 3582(e) (cross-referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D),
(a)(4)-(7)).
6
Davis does not raise any procedural error with respect to his sentence.
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However, we will vacate such a sentence “only if we are left with the definite and
firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” United States v. Shaw,
560 F.3d 1230, 1238 (11th Cir. 2009) (internal quotation marks omitted).
Davis has not shown that his 36-month sentence is substantively
unreasonable. The parties agree that, with a Grade C violation and a criminal
history category of VI, Davis’s recommended guidelines range under Chapter 7
was 8 to 14 months. See U.S.S.G. § 7B1.4(a). Because Davis’s underlying
offense of bank fraud was a Class B felony, Davis’s statutory maximum prison
term upon revocation was three years. See 18 U.S.C. § 3583(e)(3).
The district court concluded that an upward variance to the statutory
maximum of 36 months was warranted because: (1) Davis had engaged in a pattern
of conduct to obstruct the probation officer and the court; and (2) Davis posed a
danger to the public because he had “engag[ed] in conduct to defraud creditors” by
falsely listing his employment and income on the car loan application. The record
amply supports the district court’s reasons for the variance.
In addition to his underlying bank fraud offense, Davis has an extensive
criminal history of fraud involving falsifying identification and cashing counterfeit
or forged checks. At the revocation hearing, the government presented evidence
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that Davis falsely indicated on his car loan application that he was employed at
Worldwide Enterprises as a consultant making $4,000 per month. In fact, no such
company existed, and Davis was actually unemployed and receiving disability
benefits. Based on Davis’s history of fraud and the evidence that he had engaged
in further fraud with creditors while on supervised release, the district court
permissibly concluded that Davis was likely to engage in such behavior again and
that it needed to protect the public from Davis. See U.S.S.G. § 7B1.4, cmt. n.3
(explaining that when the Grade C violation “is associated with a high risk of new
felonious conduct, . . . an upward departure may be warranted”).
With respect to Davis’s obstructive conduct, the record reflects that Davis
sent harassing letters to Officer Mitchell and the officer’s supervisor. These letters
accused Officer Mitchell of racial discrimination and unlawful retaliation,
threatened to bill Mitchell for using Davis’s name on any documents, and
demanded that Mitchell fill out a questionnaire that insinuated that Mitchell was
violating his oath of office and discriminating against Davis. At the revocation
hearing, the district court indicated that Davis sent a similar questionnaire to the
court, which the district court found was frivolous and meant to harass. Davis also
sent correspondence to Mitchell stating that Mitchell owed Davis $3,290,000 for
violating Davis’s constitutional rights.
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In addition, Davis was hostile towards Officer Mitchell on more than one
occasion and would not answer Mitchell’s questions. Davis also failed to report on
two occasions when instructed to do so by Mitchell.
Under the totality of the circumstances, we cannot say the district court’s
decision to impose a 36-month sentence was an abuse of discretion.
AFFIRMED.
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