United States v. Adrian W. Davis ( 1996 )

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No. 95-4083
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Adrian W. Davis, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 28, 1996
Filed: April 4, 1996
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Before McMillian, Wollman, and Murphy, Circuit Judges.
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PER CURIAM.
Adrian W. Davis pleaded guilty to possessing cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Overruling Davis's objections to being classified as a career offender
under U.S.S.G. § 4B1.1(C), the district court1 sentenced him to 151 months
imprisonment and three years supervised release. Davis appeals, and we
affirm.
A defendant has two prior felony convictions for purposes of career-
offender classification under section 4B1.1 if the sentences for the two
prior convictions were imposed in "unrelated cases." U.S.S.G. 4A1.2(a)(2).
"Prior sentences are not considered related if they were for offenses that
were separated by an intervening arrest (i.e., the defendant is arrested
for the first offense prior to committing the second offense)." U.S.S.G.
§ 4A1.2, comment.
1
The Honorable Lyle E. Strom, United States District Judge for
the District of Nebraska.
n.3. The government produced exhibits showing Davis committed a drug
offense in 1988 while he was on bail after being arrested for a drug
offense in 1986. The district court thus correctly found that those
offenses qualified Davis as a career offender, regardless of whether they
were consolidated for sentencing. See United States v. Aguilera, 48 F.3d
327, 330 (8th Cir.), cert. denied, 116 S. Ct. 117 (1995).
Davis's contention that the commentary to section 4A1.2 should not
be applied to offenses committed before its November 1991 effective date
is meritless. We agree with the district court that there is no ex post
facto problem here, because the provisions in section 4A1.2 were enacted
before Davis committed the instant offense. Cf. United States v. Allen,
886 F.2d 143, 146 (8th Cir. 1989) (so long as actual crime for which
defendant is being sentenced occurred after effective date of new statute,
there is no ex post facto violation); United States v. Carson, 988 F.2d 80,
81-82 (9th Cir.) (per curiam) (no ex post facto claim where challenged
sentencing provisions, §§ 4A1.1 and 4A1.2, were not enacted after
commission of defendant's present crime), cert. denied, 114 S. Ct. 142
(1993).
Davis also argues that a criminal history category VI overrepresented
the seriousness of his past criminal conduct, and that the district court
therefore erred in refusing to depart downward at sentencing under
U.S.S.G.§ 4A1.3. Because the record shows the district court was clearly
aware of its authority to depart from the Guidelines range of 151 to 188
months, its discretionary decision not to do so is unreviewable. See
United States v. Hall, 7 F.3d 1394, 1396 (8th Cir. 1993).
Accordingly, we affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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