United States v. Milo Davis ( 2013 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-3189
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Milo Vareen Davis
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
____________
Submitted: October 22, 2013
Filed: November 29, 2013
____________
Before RILEY, Chief Judge, BYE and MELLOY, Circuit Judges.
____________
RILEY, Chief Judge.
This case is before us on remand from the United States Supreme Court. On
August 22, 2012, our court affirmed Milo Vareen Davis’s convictions and sentences
for conspiring to distribute cocaine base and cocaine in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), (b)(1)(B), 846, and 851, and for money laundering in
violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2. See United States v. Davis, 690
F.3d 912, 917-18, 929 (8th Cir. 2012). In affirming Davis’s sentence, we concluded
any error the district court1 made in failing to apply retroactively the Fair Sentencing
Act of 2010 (FSA)2, Pub. L. No. 111–220, 124 Stat. 2372, was harmless given the
basis for Davis’s sentence. See Davis, 690 F.3d at 928-29 (discussing Dorsey v.
United States, 567 U.S. ___, ___, 132 S. Ct. 2321, 2326 (2012) (holding “the new,
more lenient mandatory minimum provisions” of the FSA apply to pre-FSA
offenders)).3
Davis filed a petition for writ of certiorari. On June 24, 2013, the Supreme
Court granted certiorari, vacated our judgment, and remanded for reconsideration in
light of Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151 (2013). See Davis
v. United States, ___ U.S. ___, 133 S. Ct. 2852 (2013). In Alleyne, the Supreme
Court held the Sixth Amendment of the U.S. Constitution requires a jury to find
beyond a reasonable doubt any fact that increases a mandatory minimum sentence.
See Alleyne, 570 U.S. at ___, 133 S. Ct. at 2162-63.
Having reconsidered Davis’s appeal as directed by the Supreme Court, we
again affirm the district court’s judgment and reinstate all but Part II.F. of our prior
opinion.4 See Davis, 690 F.3d at 928-29. Any errors the district court committed
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
2
The FSA increased the threshold quantities of cocaine base necessary to
trigger statutory mandatory minimums under 21 U.S.C. § 841(b)(1). See FSA § 2.
3
The government concedes “[u]nder the FSA and post-Dorsey, the jury’s [drug-
quantity] finding places [Davis] under 21 U.S.C. § 841(b)(1)(B) for a statutory range
of 10 years’ to life imprisonment.”
4
Our observation in Davis that “‘a district court may impose a sentence based
on a drug quantity determination greater than that found by the jury so long as the
sentence does not exceed the statutory maximum of the convicted offense and the
district court’s calculation is supported by sufficient evidence[,] . . . even where the
-2-
with respect to Davis’s sentence are harmless under the circumstances of this case.5
See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded.”).
A jury convicted Davis of conspiring to distribute drugs and of money
laundering. Specifically, the jury determined Davis conspired to distribute “50 grams
or more of cocaine base” and “500 grams or more of a mixture or substance
containing a detectable amount of cocaine,” in each case the maximum amount
specified on the verdict form. Based on the jury’s quantity findings, the district
court—though consistent with the law at the time—erroneously advised Davis at
sentencing that he was subject to a mandatory minimum of twenty years
imprisonment.
Notwithstanding Davis’s argument to the contrary, the district court’s error did
not affect Davis’s substantial rights. In calculating Davis’s advisory United States
Sentencing Guidelines (U.S.S.G.) range,
[t]he district court found Davis responsible for 5,163.06 grams of crack
and 3,649.15 grams of powder cocaine, which resulted in an adjusted
district court’s finding subjects a defendant to a lengthier mandatory minimum
sentence than that which would be applicable based solely on the jury’s quantity
determination,’” Davis, 690 F.3d at 928 (quoting United States v. Webb, 545 F.3d
673, 677 (8th Cir. 2008) (internal citations omitted)), is no longer correct according
to Alleyne, 570 U.S. at ___, 133 S. Ct. at 2155.
5
The government questions whether Davis “failed to preserve an objection,
thereby forfeiting his Alleyne claim” and subjecting his claim to plain-error review
under Fed. R. Crim. P. 52(b). We need not address that issue in this appeal. See
United States v. Anderson, 236 F.3d 427, 429 n.3 (8th Cir. 2001) (per curiam)
(“Because we conclude that the . . . error does not warrant reversal under
harmless-error analysis, we need not decide whether the more stringent plain-error
standard of review would apply to this case.”).
-3-
offense level of 36. See U.S.S.G. § 2D1.1. Because the adjusted
offense level of 40 for the money laundering conviction was higher, the
district court applied that level to both counts, determining Davis was
subject to an advisory Guidelines range of 360 months to life
imprisonment for his conspiracy conviction (level 40, category IV). See
U.S.S.G. § 3D1.3(a) (explaining the offense level that applies to a group
of closely related offenses is “the highest offense level of the counts in
the [g]roup”).
Davis, 690 F.3d at 928-29. Closely analyzing the 18 U.S.C. § 3553(a) sentencing
factors, the district court found “a basis to go . . . above the low end of the advisory
guideline range of 360 months” to life but “decline[d] to do so” and concluded a 360-
month sentence was “supported by the evidence[] and . . . sufficient but not greater
than necessary to achieve the goals of sentencing” regardless of the application of the
FSA. Davis’s sentence was not based on the twenty-year mandatory minimum.
Because any Alleyne error in this case is harmless, we affirm.
______________________________
-4-