United States v. Zavier Davis , 720 F.3d 215 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4346
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ZAVIER MARQUIS DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:11-cr-00080-MOC-DSC-1)
Argued: May 17, 2013 Decided: June 24, 2013
Before MOTZ, GREGORY, Circuit Judges, and Ellen L. HOLLANDER,
United States District Judge for the District of Maryland,
sitting by designation.
Vacated and remanded by published opinion. Judge Gregory wrote
the opinion, in which Judge Motz and Judge Hollander joined.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina; Thomas N. Cochran, Assistant
Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Asheville, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina, for
Appellee.
GREGORY, Circuit Judge:
As permitted under North Carolina law, Appellant
Zavier M. Davis received one consolidated sentence for multiple
violations of state law. Based on its interpretation of the
career offender enhancement in the United States Sentencing
Guidelines (“Guidelines”), see U.S.S.G. § 4B1.1, the district
court counted this consolidated sentence as at least “two prior
felony convictions” and sentenced Davis as a career offender.
We hold that a consolidated sentence under North Carolina law is
a single sentence for purposes of the career offender
enhancement. Thus, we vacate Davis’ sentence and remand for
resentencing.
I.
In July 2004, Davis used a handgun to rob a Burger King in
Charlotte, North Carolina. Davis was arrested and indicted in
state court for robbery with a dangerous weapon, in violation of
N.C. Gen. Stat. Ann. § 14-87. * On February 23, 2005, Davis used
a gun to rob a McDonald’s in Charlotte, North Carolina. A day
prior to this robbery, Davis used a gun to assault one
individual and rob another. In an eight-count indictment for
the February 2005 robberies, Davis was charged with five counts
of robbery with a dangerous weapon, among other things.
*
The date of Davis’ arrest is not evident in the record, but
his counsel conceded before the district court that it was prior
to his February 2005 robberies.
2
On September 9, 2005, Davis pled guilty in North Carolina
state court to several counts in the July 2004 and February 2005
state indictments. As relevant, Davis pled guilty to six counts
of robbery with a dangerous weapon (“RWDW”)--one count for the
2004 robbery, and five counts for the 2005 robberies.
Consistent with the plea agreement, the charges were to be
consolidated for judgment as one RWDW and sentenced as a class D
felony. See N.C. Gen. Stat. Ann. § 15A-1340.15(b). In exchange,
the state agreed to dismiss the remaining charges. In accordance
with the plea, the state court imposed one sentence of 61 to 83
months.
On July 31, 2010, Davis used a handgun to rob a Wendy’s
Restaurant in Charlotte, North Carolina. In the U.S. district
court, without the benefit of a written plea agreement, Davis
pled guilty to three counts: (1) Hobbs Act robbery; (2) use of a
firearm in furtherance of a violent crime; and (3) possession of
a firearm by a convicted felon.
Following his plea, a federal probation officer prepared a
Presentence Investigation Report (“PSR”). In calculating the
Guidelines range applicable to Davis, the probation officer
noted that Davis qualified for the career offender enhancement
under U.S.S.G. § 4B1.1 because he was at least 18 years old when
he committed the instant robbery, and because he had two prior
North Carolina robbery offenses. Accordingly, the probation
officer recommended that the court sentence Davis as a career
3
offender, increasing his base offense level from twenty-six to
thirty-two.
At sentencing, Davis objected to the career offender
enhancement, arguing that he received a “consolidated sentence”
for his prior state offenses and thus did not have “at least two
prior felony convictions” as defined by the Guidelines. The
Government opposed the motion, asserting that prior felony
convictions that are consolidated for sentencing but based on
offenses that were separated by an intervening arrest constitute
separate sentences for the purposes of the enhancement. Because
Davis’ North Carolina offenses were separated by an intervening
arrest, the Government argued the career offender enhancement
was applicable.
The district court agreed with the Government, denied
Davis’ objection, and applied the enhancement. Based on a
criminal history category of VI, it determined Davis’ applicable
career-offender Guidelines range was 262 to 327 months. The
district court then sentenced Davis to a within-Guidelines
sentence of 276 months.
Davis timely appealed and we have jurisdiction pursuant to
28 U.S.C. § 1291.
II.
Davis contends that the district court erroneously applied
the career offender enhancement to him because under the plain
4
language of the Guidelines, a single consolidated sentence
cannot be counted as separate sentences. We review the
interpretation of the Guidelines de novo. United States v.
Henoud, 81 F.3d 484, 490 (4th Cir. 1996).
A.
To be labeled a career offender: (1) the defendant must be
18 or older at the time he committed the present offense; (2)
the present offense must be a crime of violence or controlled
substance offense; and (3) the defendant must have “at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1(a). The sole
issue on appeal is whether Davis’ prior state robbery offenses
qualify as “two prior felony convictions” as defined by the
Guidelines.
Under the Guidelines, the existence of two prior felony
convictions alone is not dispositive; the defendant must also
have at least two prior sentences for those convictions.
Specifically, the “two prior felony convictions” prong is
satisfied if: (1) the defendant has previously sustained at
least two felony convictions of either a crime of violence or a
controlled substance offense; and (2) “the sentences for at
least two of the aforementioned felony convictions are counted
separately.” U.S.S.G. § 4B1.2(c) (emphasis added).
Davis concedes that the former requirement--felony
convictions of either a crime of violence or controlled
5
substance--is met because he has at least two prior robbery
convictions. He contends, however, the latter requirement--
separately counted sentences for the convictions--is not met
because he received only one sentence for those convictions.
For the reasons that follow, we agree.
B.
First, as noted above, the plain language of U.S.S.G.
§ 4B1.2(c) requires that a defendant can only be sentenced as a
career offender if he received “sentences for at least two”
prior felonies. Davis received only one sentence for his prior
state felonies.
Under North Carolina’s statutory provision for “[m]ultiple
convictions,” where an individual is convicted of more than one
offense, the general rule is that “all sentences of imprisonment
run concurrently with any other sentences of imprisonment.”
N.C. Gen. Stat. Ann. § 15A-1340.15(a). There are two exceptions
to this general rule. First, the court may impose a consecutive
sentence by expressly specifying the sentence as such. Id.
Alternatively, the court may impose a consolidated sentence or
judgment:
If an offender is convicted of more than one offense
at the same time, the court may consolidate the
offenses for judgment and impose a single judgment for
the consolidated offenses. The judgment shall contain
a sentence disposition specified for the class of
offense and prior record level of the most serious
offense, and its minimum sentence of imprisonment
shall be within the ranges specified for that class of
offense and prior record level, unless applicable
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statutes require or authorize another minimum sentence
of imprisonment.
Id. § 15A-1340.15(b) (emphasis added). Thus, when a North
Carolina court consolidates offenses for judgment, the outcome
is a single judgment for which the length of the sentence is
controlled by the maximum sentence for the most serious offense.
For his prior 2004 and 2005 offenses, Davis received a
“single judgment for [ ] consolidated offenses” pursuant to this
North Carolina statutory provision. Consequently, Davis came to
federal court with one consolidated sentence.
C.
Second, we have no published authority on whether a North
Carolina consolidated sentence is a single sentence or multiple
sentences under the Guidelines, and thus no published authority
suggesting we should disregard the plain meaning of the
Guidelines.
The Government contends that we have decided this issue
before, stating that “[i]t is well established in this circuit
that cases consolidated for sentencing under North Carolina
law[] yield multiple separate offenses as long as the offenses
were separated by an intervening arrest.” (Gov’t’s Br. at 8.)
In support, the Government cites to United States v. Huggins,
191 F.3d 532, 539 (4th Cir. 1999), and a few unpublished
opinions. But the latter are without precedential value, and
Huggins is clearly distinguishable.
7
In Huggins, the defendant argued that he was erroneously
sentenced as a career offender because his two prior 1987
convictions were “consolidated for sentencing,” and thus were
related offenses that counted together as a single offense. 191
F.3d at 539. We cited to the Guidelines commentary, which at
the time stated “‘[p]rior sentences are not considered related
if they were for offenses that were separated by an intervening
arrest.’” Id. (quoting U.S.S.G. § 4A1.2, application n. 3
(1999)). Because Huggins was arrested for his first offense in
March 1987, a month prior to committing his second offense, we
found that there was an intervening arrest, and thus, his prior
offenses were not related and counted separately for purposes of
the career offender enhancement.
Davis contends that Huggins is distinguishable because it
is based on the pre-2007 version of § 4A1.2, which turned on
whether the prior cases were “related.” Under the old rule, two
sentences consolidated for sentencing were related and counted
as one sentence, if the underlying offenses were not separated
by an intervening arrest. We find that for purposes of this
case there is no substantive difference between the old rule and
the new rule, which provides that two prior sentences count
separately if the offenses were separated by an intervening
arrest. See U.S.S.G. § 4A1.2(a)(2). Thus, Huggins cannot be
distinguished based merely on a nonpertinent change to the text
of the applicable rule.
8
The relevant distinction is that the defendant in Huggins
received two separate sentences for his two prior offenses,
notwithstanding the fact that the offenses were “consolidated
for sentencing.” The prior offenses in Huggins occurred in
1987, six years before North Carolina enacted the consolidated
sentence provision. See N.C. Gen. Ann. Laws 1993, c. 538, § 1,
eff. Oct. 1, 1994; see also State v. Branch, 518 S.E.2d 213, 215
(N.C. Ct. App. 1999) (holding that as a matter of law, “offenses
that were committed prior to 1 October 1994, the effective date
of the Structured Sentencing Act,” cannot be consolidated for
judgment under the Act). Thus, Huggins is inapposite because it
does not address the textual issue raised in this case, an issue
that could not have been raised at the time.
The term “consolidated for sentencing” as addressed in
Huggins does not equate to “consolidated sentence” (or
“consolidated judgment”). The distinction is not merely textual
or grammatical; the former is procedural, while the latter is
substantive. When offenses are “consolidated for sentencing,”
the consolidation is merely a procedural mechanism used
primarily out of concern for judicial economy and efficiency.
See, e.g., United States v. Cole, 857 F.2d 971, 974 (4th Cir.
1988) (“interests of judicial economy were furthered by [] joint
trial”). Whereas, under North Carolina law, a “consolidated
sentence” is a mechanism that affects the substantive rights of
a defendant, and in some scenarios, could be beneficial to the
9
defendant. See State v. Tucker, 588 S.E.2d 853, 857 (N.C. 2003)
(consolidated judgments “work[] to the benefit of the defendant
by limiting the maximum sentence that he can receive for all of
the convictions so consolidated”) (citation omitted). As such,
a consolidated sentence is distinct from a consolidated
proceeding.
D.
The language of the Guidelines is plain. It begins with
the basic principle that there must be more than one prior
sentence for the enhancement to apply. See U.S.S.G. § 4B1.2(c)
(laying out the “sentence” requirement in plural, as opposed to
singular, form). In the absence of “multiple prior sentences,”
the existence of an intervening arrest is irrelevant. See id.
§ 4A1.2(a)(2).
We hold today that where a defendant receives a
“consolidated sentence” (or “consolidated judgment”) under North
Carolina law, it is one sentence and absent another qualifying
sentence, the enhancement is inapplicable. In laying out this
principle, we adhere to and are constrained by “well-established
federalism principles [which] do not permit a federal court to
reject North Carolina’s judgment as to the seriousness of a
North Carolina crime, prosecuted in a North Carolina court and
adjudicated by a North Carolina judge, merely because the
federal court might ‘expect’ a more serious punishment.” United
States v. Simmons, 649 F.3d 237, 249 (4th Cir. 2011) (en banc).
10
Applying this test, we find that the career offender
enhancement is inapplicable to Davis because the third prong of
the career offender enhancement requiring “two prior felony
convictions,” as defined by the Guidelines, is not satisfied.
For the 2004 and 2005 robberies, Davis received a single
consolidated sentence. Because the Government failed to put
forth another qualifying sentence, it was error for the district
court to enhance Davis’ applicable guideline range and sentence
him as a career offender.
To be clear, our decision does not turn on state law. See
United States v. Stewart, 49 F.3d 121, 123 n.3 (4th Cir. 1995)
(“A federal court construing the federal Sentencing Guidelines
need not turn to state law.”). Instead, it rests on what the
plain language of the Guidelines demands.
The Government contends that our interpretation belies the
policy goals of the Sentencing Commission as it would result in
sentencing disparities, i.e., some defendants would avoid the
career offender enhancement simply because of a state court’s
decision to consolidate sentences, while other defendants
without consolidated sentences would not be so lucky. We are
not persuaded.
As a general matter, the plain meaning of the Guidelines
trumps policy considerations. See United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 240 (1989) (“The plain meaning of
legislation should be conclusive, except in the rare cases in
11
which the literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters.”)
(internal quotation marks and alterations omitted). Moreover,
as Davis points out, there are other mechanisms within the
Guidelines, such as departures and variances, which the
Government could urge the sentencing court to apply, in order to
correct identified sentencing disparities.
III.
Based on our interpretation of the Guidelines, we conclude
that the district court erred in applying the career offender
enhancement because Davis had only one prior qualifying
sentence, not two. Accordingly, we vacate Davis’ sentence and
remand this matter for resentencing without the career offender
enhancement.
VACATED AND REMANDED
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