United States v. Iklas Davis ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 22-2807
_____________
UNITED STATES OF AMERICA
v.
IKLAS DAVIS,
Appellant
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 2-20-cr-00024-001)
District Judge: Honorable J. Nicholas Ranjan
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 5, 2023
Before: SHWARTZ, MATEY, and FISHER, Circuit Judges
(Filed: December 8, 2023)
_____________
OPINION*
_____________
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
MATEY, Circuit Judge.
Iklas Davis was convicted of several crimes following a jury trial. Proceeding pro
se on appeal, Davis challenges those convictions and his corresponding sentence. For the
reasons below, we will affirm his convictions and sentence.
I.
In 2017, Davis and his associates stole driver’s licenses and credit cards from
parked vehicles and used them for fraudulent purchases. When surveillance footage of
the crimes was publicized, Davis voluntarily surrendered to police and was later
indicted.1 After the District Court appointed counsel, Davis asked to represent himself.2
In response, the District Court attentively conducted three Faretta colloquies and found
that Davis did not clearly and unequivocally satisfy the requirements for self-
representation. During a fourth Faretta colloquy, Davis frustrated the District Court’s
inquiries.
Davis proceeded to a jury trial with help from counsel.3 He testified in his own
defense, admitted committing the crimes, and was convicted. At sentencing, Davis’s
counsel successfully objected to portions of the presentence investigation report (PSR),
and those objections were incorporated into the District Court’s sentencing calculation.
The District Court sentenced Davis to serve 60 months in prison and a three-year term of
1
For conspiracy, in violation of 18 U.S.C. § 371; use of unauthorized access
devices, in violation of 18 U.S.C. §§ 1029(a)(2) and 2; and aggravated identity theft, in
violation of 18 U.S.C. §§ 1028A(a)(1) and 2.
2
Davis’s first and second appointed counsel moved to withdraw.
3
It was Davis’s third appointed counsel who represented him through trial.
2
supervised release. He now appeals pro se, having completed this Court’s waiver of
counsel form.4
II.
Though Davis raises several issues on appeal that challenge his convictions and
sentence, none have merit, so we will affirm.
A.
Davis argues that the District Court erred in denying his requests for self-
representation.5 The Sixth Amendment guarantees the right of the accused to “have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI. In Faretta v. California,
the Supreme Court recognized that this guarantee “does not provide merely that a defense
shall be made for the accused; it grants to the accused personally the right to make his
defense.” 422 U.S. 806, 819 (1975).
This right to self-representation, however, is not boundless. “[I]n order to
represent himself, the accused must ‘knowingly and intelligently’ forgo those
relinquished benefits” “associated with the right to counsel.” Id. at 835. Applying
Faretta, we have explained that a defendant must express the desire to proceed pro se
“clearly and unequivocally.” United States v. Peppers, 302 F.3d 120, 132 (3d Cir. 2002).
4
The District Court had jurisdiction under 18 U.S.C. § 3231 and we have
jurisdiction under 28 U.S.C. § 1291.
5
Davis preserved this issue for appeal. We engage in plenary review of the
District Court’s ruling on a defendant’s request to represent himself, and review facts
found by the District Court for clear error. United States v. Taylor, 21 F.4th 94, 99 (3d
Cir. 2021).
3
The trial court must then confirm that “the defendant understands ‘the nature of the
charges, the range of possible punishments, potential defenses, technical problems that
the defendant may encounter, and any other facts important to a general understanding of
the risks involved.’” Id. (citation omitted). The court must also “assure itself that the
defendant is competent to stand trial.” Id. (internal quotation marks omitted).
During the first three Faretta colloquies, the District Court signaled that Davis
was “potentially waiv[ing] important constitutional rights” and needed to understand that
“this is a serious decision with heavy consequences.” Supp. App. 61, 64. Among other
questions, the District Court asked Davis about his state of mind, his education, his
experience with self-representation, the charges he faced, and the associated penalties.
All showing the District Court’s careful attention to and respect for Davis’s desire for
self-representation. Still, none of Davis’s responses showed a clear and unequivocal
waiver6 of the right to counsel, Peppers, 302 F.3d at 132, so the District Court did not err
in denying Davis’s request. See United States v. Banks, 55 F.4th 246, 253–55 (3d Cir.
2022).
For example, in response to the District Court asking whether it was Davis’s
6
desire to represent himself, he said he was “not going pro se.” Supp. App. 63. He also
told the District Court he had the right to counsel and “I will not at no point give up that
right.” Supp. App. 65. At other times, Davis said he “need[ed] assistance to proceed
along in th[e] case” and to “prepare the case to present to the jury or to present to this
Court.” Supp. App. 112, 113. And when the District Court tried to explain to Davis the
requirements of presenting his case in compliance with the Federal Rules of Evidence
and Federal Rules of Criminal Procedure, Davis said that because he was “not an
attorney,” he would not be “bound by the same rules as an attorney.” Supp. App. 211–13.
4
Another attempted Faretta colloquy ended when Davis frustrated the District
Court’s attempt to get through “the very first question.” Supp. App. 291. “If a defendant
disobeys the court’s directions and, in doing so, stymies its inquiry into the defendant’s
request to represent himself, the court may truncate its Faretta colloquy.” United States v.
Taylor, 21 F.4th 94, 103 (3d Cir. 2021). There was thus no error when the District Court
did just that and denied Davis’s final request for self-representation.
B.
Davis also challenges the sufficiency of evidence used to convict him of the
charged crimes.7 Our review is “greatly tempered by giving substantial deference to the
jury’s finding of guilt.” United States v. Lacerda, 958 F.3d 196, 225 (3d Cir. 2020). We
focus on whether “the record evidence could reasonably support a finding of guilt beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). The “relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found” the defendant guilty. Id. at 319(emphasis in original). Reversal “is only appropriate where there is no evidence,
regardless of how it is weighted, from which the jury could find guilt beyond a
reasonable doubt.” Lacerda, 958 F.3d at 225 (citation and internal quotation marks
omitted).
7
Davis preserved this issue for appeal. We engage in plenary review of
sufficiency challenges. United States v. Lacerda, 958 F.3d 196, 225 (3d Cir. 2020).
5
The Government presented ample evidence to support the verdicts. The
Government introduced surveillance photos showing Davis transacting with the stolen
credit cards; records of text messages between Davis and his co-conspirators with many
pictures of victims’ stolen credit cards and driver’s licenses; sales receipts of the
fraudulent purchases; and Davis’s internet browsing history showing he searched for
victims’ biographical information. Davis also stipulated to other facts and elements of the
crimes charged. And Davis admitted on the stand that he committed the crimes. Supp.
App. 522 (“Like I said, I did it.”). Because a jury could reasonably find guilt beyond a
reasonable doubt based on this evidence, Davis’s sufficiency challenge fails.
C.
Finally, Davis challenges the application of a total ten-point enhancement to his
base offense level for a loss of more than $40,000; an offense involving ten or more
victims; and for possession of device-making equipment. See U.S.S.G.
§§ 2B1.1(b)(1)(D), (b)(2)(A)(i), (b)(11)(A)(i).8 We review this challenge for plain error
based on a complicated history.9 United States v. Henderson, 64 F.4th 111, 116–17 (3d
Cir. 2023). Because we conclude the District Court did not plainly err, we will uphold
Davis’s sentence.
8
These enhancements must be proven by a preponderance of the evidence. See
United States v. Ali, 508 F.3d 136, 145 (3d Cir. 2007).
9
At first, Davis’s counsel objected to the sentencing enhancements for loss
amount and number of victims. Those two objections were then withdrawn, while the
objection to the obstruction of justice enhancement remained. Davis then submitted a
motion pro se objecting again to all three enhancements, but that was denied because
Davis was still, at the time, represented by counsel. Leaving the issue forfeited.
6
“Plain error review requires finding that (1) there is an error that has not been
waived, (2) the error is plain, (3) the error affected appellant’s substantial rights, and (4)
the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Henderson, 64 F.4th at 117 (citing United States v. Olano, 507 U.S. 725,
732 (1993)). An appellant can show that an error affected substantial rights under the
third prong if he shows that he was “sentenced under an incorrect Guidelines range—
whether or not the ultimate sentence falls within the correct range.” Id. at 120. Davis’s
claim fails here.
For the amount of loss enhancement, “[a] district court must make a reasonable
estimate of the loss, based on available information in the record.” United States v. Laird,
67 F.4th 140, 144–45 (3d Cir. 2023) (citation and internal quotation marks omitted).10 At
sentencing, the District Court weighed “all of the materials submitted,” Supp. App. 720,
including evidence presented at trial for the amount of fraudulent purchases, Davis’s
stipulations to other thefts of cash and valuable personal effects, and the PSR, containing
the Government’s conservatively estimated loss amount,11 to reasonably estimate the
amount of loss.
10
In recent decisions, we have explained that “in calculating the loss under the
Sentencing Guidelines, our focus is limited to the ‘actual loss’ suffered by the victim,”
defined as “‘the reasonably foreseeable pecuniary harm that resulted from the offense.’”
United States v. Kousisis, 82 F.4th 230, 245 (3d Cir. 2023) (citing Banks, 55 F.4th at
256–57 and U.S.S.G. § 2B1.1 cmt. n.3(A)(i)).
11
In United States v. Scarfo, we found no error when the District Court utilized the
PSR to help it “reasonabl[y] estimate” the amount of loss for a Guidelines enhancement.
41 F.4th 136, 212–13 (3d Cir. 2022), cert. denied sub nom. Pelullo v. United States, 143
S. Ct. 1044 (2023) (quoting U.S.S.G. § 2B1.1 cmt. n.3(C)).
7
As for the number of victims enhancement, Davis stipulated that the offense
involved ten or more victims, so the District Court did not plainly err in imposing the
corresponding enhancement.
Finally, with respect to the possession or use of device-making equipment
enhancement, a search of Davis’s home turned up equipment used to create fraudulent
access devices and notes containing the personal identification information of various
individuals. We have held that possession of such equipment supports this Guidelines
enhancement. United States v. A.M., 927 F.3d 718, 719–21 (3d Cir. 2019).
Because we cannot say the District Court plainly erred in calculating Davis’s
Guideline range, we will affirm his sentence.12
12
Davis’s remaining arguments are without merit.
Davis states the District Court lacked jurisdiction, but jurisdiction existed under 18
U.S.C. § 3231, which grants “original jurisdiction, exclusive of the courts of the States, of
all offenses against the laws of the United States.” Accord Turkiye Halk Bankasi A.S. v.
United States, 598 U.S. 264, 269 (2023). And contrary to Davis’s assertions, the U.S.
Attorney had standing to prosecute him because an “injury to [the United States’s]
sovereignty arising from violation of its laws . . . suffices to support a criminal lawsuit by
the Government.” Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765,
771 (2000). Davis also filed a motion to this effect on March 23, 2023, asking this Court
to void and vacate the District Court’s judgment for lack of jurisdiction and fraud in
factum. For the reasons already stated, we will deny Davis’s motion.
Davis also contends that he was immune from prosecution as a “private citizen,”
and that he was wrongfully prosecuted under the “Trading with the Enemy Act,”
“Emergency Banking Act,” and the “War Powers Act.” Opening Br. 4. Davis appears to
make the private citizen argument for the first time on appeal, and it is also incorrect. See
Taylor, 21 F.4th at 101 n.6 (finding defendant’s “sovereign citizen” claim “lack[ed]
merit”); United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990) (finding that
defendant’s sovereign citizen defense had “no conceivable validity in American law”).
Further, Davis was not prosecuted under the statutes he identifies.
8
***
For these reasons, we will affirm Davis’s convictions and sentence.
Davis also argues that his appointed counsel had interests “directly adverse to” his
and that the representation violated “the canons of professional ethics.” Opening Br. 2.
But this argument, raised for the first time on appeal, lacks any factual specificity.
Last, Davis claims the District Court prevented him from objecting to the PSR at
sentencing. But Davis’s counsel did object, and successfully secured a reduction of an
enhancement for obstruction of justice.
9