United States v. Michael Davison ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3016
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Michael Antonio Davison
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: April 15, 2022
Filed: July 25, 2022
[Unpublished]
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Before SHEPHERD, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
Michael Antonio Davison pled guilty to conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, and
possession of methamphetamine with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A). In calculating the applicable United States Sentencing
Guidelines range, the district court1 added a two-level enhancement for possession
of a weapon in connection with a drug trafficking offense. With a total offense level
of 43 and a criminal history category of VI, the district court noted that the Guidelines
recommended life imprisonment. Declining to sentence Davison to life
imprisonment, the district court varied downward and sentenced him to two
concurrent 320-month terms of imprisonment and two concurrent 5-year terms of
supervised release. Davison appeals his sentence. Having jurisdiction under 28
U.S.C. § 1291, we affirm.
Davison asserts that the government failed to prove that the firearm he
possessed “was physically near drugs or a drug transaction.” In other words, he
argues that the government did not prove that he “possessed a firearm in the vicinity
of drug trafficking activity,” as required for the application of a two-level, USSG
§ 2D1.1(b)(1) enhancement. We review the district court’s factual findings
supporting its application of the enhancement for clear error, United States v. Brewer,
624 F.3d 900, 907 (8th Cir. 2010), giving great deference to the district court’s
findings as to witness credibility, which are “virtually unassailable on appeal,” United
States v. Denton, 434 F.3d 1104, 1114 (8th Cir. 2006) (citation omitted).
“Section 2D1.1(b)(1) mandates a two-level enhancement if the [g]overnment
can prove by a preponderance of the evidence that the defendant possessed ‘a
dangerous weapon (including a firearm)’ while violating 21 U.S.C. § 841(b).” United
States v. Savage, 414 F.3d 964, 966 (8th Cir. 2005) (quoting USSG § 2D1.1(b)(1)).
“In order for the enhancement to apply, the government must establish two things:
‘(1) the gun was possessed and (2) it was not clearly improbable that the weapon was
connected to the drug offense.’” United States v. Young, 689 F.3d 941, 946 (8th Cir.
2012) (citation omitted). A defendant possesses a firearm for purposes of USSG
1
The Honorable John A. Jarvey, then Chief Judge, United States District Court
for the Southern District of Iowa, now retired.
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§ 2D1.1(b)(1) if he “exercised ‘ownership, dominion, or control’ either over the
firearm or the premises on which it [was] found.” United States v. Payne, 81 F.3d.
759, 762 (8th Cir. 1996) (citation omitted). Under USSG § 2D1.1(b)(1), “[t]he
government bears the burden of proving by a preponderance of the evidence that the
firearm was present and was probably connected to the drug charge. To carry its
burden, the government need only prove a temporal and spatial nexus among the
weapon, defendant, and drug-trafficking activity.” United States v. Torres, 409 F.3d
1000, 1003 (8th Cir. 2005) (citation omitted).
We disagree with Davison’s argument and hold that the district court did not
clearly err in finding that he possessed at least one firearm in connection with a drug
offense. First, as part of the factual basis for the plea agreement, Davison admitted,
as pertinent here, that, during 2017 and 2018, he and others conspired to distribute
methamphetamine in the Burlington, Iowa area, he recruited additional conspiracy
members, he held decision-making authority within that conspiracy, he maintained
a premises (at 417 Summer Street in Burlington, Iowa) for the purpose of storing and
distributing methamphetamine, and he gathered individuals at the 417 Summer Street
residence for the purpose of distributing methamphetamine. Additionally, law
enforcement officers conducted multiple controlled purchases of methamphetamine
from the 417 Summer Street residence during the relevant period.
Further, at sentencing, the government presented testimony from a confidential
source, given before a grand jury, in which the source explained that from January to
April 2018, that source lived at the 417 Summer Street residence. During that time,
the source witnessed Davison engaging in drug trafficking activities at the residence.
These activities included the procurement and storage of methamphetamine in the
residence, the division of larger quantities of methamphetamine into smaller
quantities for the purpose of distribution, and the sale of methamphetamine. The
source further testified that on one occasion, Davison was in possession of a black
handgun and asked the source “to put it up.” At sentencing, the government
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explained that “to put it up” meant that Davison was asking the source “to basically
hide it in the residence.” The source complied with Davison’s request by taking the
handgun from Davison and placing it in a basket in a closet. Detective Adam Plein
of the Southeast Iowa Narcotics Task Force testified at sentencing and attested to the
source’s credibility, explaining that he was personally familiar with the source, he had
personally met with the source, and law enforcement had obtained additional
information corroborating the source’s narrative, including information from other
cooperating individuals and information obtained through surveillance. Detective
Plein explained that he believed that the source had “provided reliable information.”
The district court found that the source’s testimony was “exceedingly detailed” and
credible.
Ultimately, this evidence supports the district court’s finding that Davison
possessed a handgun in connection with, both spatially and temporally, the drug
trafficking activity that he was engaged in at the 417 Summer Street residence. To
the extent that Davison challenges the confidential source’s credibility, “[i]t is well
settled that a district court’s assessment of a witness’ credibility is a judgment call
and ‘virtually unassailable on appeal.’” United States v. King, 518 F.3d 571, 575 (8th
Cir. 2008) (citation omitted); see also Denton, 434 F.3d at 1114 (explaining that
“issues of credibility are within the discretion of the district court and [are] ‘virtually
unassailable on appeal’” (citation omitted)). Therefore, we find that the district court
did not abuse its discretion in applying the two-level enhancement pursuant to USSG
§ 2D1.1(b)(1). See United States v. Elodio-Benitez, 672 F.3d 584, 586 (8th Cir.
2012) (“[W]here a district court has sentenced a defendant below the advisory
guidelines range, it is nearly inconceivable that the court abused its discretion in not
varying downward still further.” (citation omitted)).
For the foregoing reasons, we affirm Davison’s sentence.
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