United States v. Davis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4010
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMOIA OMAR DAVIS, a/k/a Moe,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J.
Conrad, Jr., Chief District Judge. (3:06-cr-00363-RJC-2)
Submitted: September 18, 2009 Decided: October 9, 2009
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Mark
Andrew Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, Amy Elizabeth Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demoia Omar Davis appeals his 142-month sentence upon
conviction of conspiracy to possess with intent to distribute
cocaine, cocaine base, and marijuana, in violation of 21 U.S.C.
§ 846 (2006); two counts of possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006);
possession of a firearm during and in relation to a drug
trafficking offense, in violation of 18 U.S.C. § 924(c) (2006);
and possession of a firearm by a prohibited person, in violation
of 18 U.S.C. § 922(g)(9) (2006). Davis’s attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious issues for appeal but
arguing that trial counsel was ineffective in failing to object
to the probation officer’s purported use of the 2006 edition of
the guidelines manual in calculating Davis’s offense level.
Davis filed a pro se supplemental brief, contending that trial
counsel was ineffective not only in failing to object to the
probation officer’s errors in calculating Davis’s offense level
but also in failing to challenge the 100:1 sentencing disparity
between crack cocaine and powder cocaine. We affirm.
Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal. See United States v. King,
119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for
adequate development of the record, a defendant must ordinarily
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bring his claim in a 28 U.S.C.A. § 2255 (West Supp. 2009)
motion. See id.; United States v. Hoyle, 33 F.3d 415, 418 (4th
Cir. 1994). An exception to this general rule exists when the
appellate record conclusively establishes ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999); King, 119 F.3d at 295.
In order to succeed on a claim of ineffective
assistance, defendant must show that: (1) counsel’s performance
fell below “prevailing professional norms;” and (2) counsel’s
deficient performance was prejudicial. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). Generally, to satisfy
the second prong of Strickland, a defendant “must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. In the context
of a conviction following a guilty plea, a defendant “must show
that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985)
(footnote omitted). Courts may bypass the performance prong and
proceed directly to the prejudice prong when it is easier to
dispose of the case for lack of prejudice. Strickland, 466 U.S.
at 697.
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Here, the record does not conclusively demonstrate
that counsel was ineffective in failing to object to the
calculation of the offense level. Rather, the record shows that
the probation officer actually did use the 2007 guidelines in
effect at the time of sentencing to accurately calculate Davis’s
offense level. Despite the notation in the Presentence Report
(“PSR”) that the probation officer applied the 2006 version of
the guidelines, the calculated marijuana equivalency of 114.809
kilograms comports with a calculation performed using the 2007
guidelines. Davis was found to be responsible for 7.12 grams of
cocaine base, 4.41 grams of cocaine, and seven grams of
marijuana. Under the 2006 guidelines drug equivalency table,
4.41 grams of cocaine had a marijuana equivalency of 882 grams
of marijuana and 7.12 grams of cocaine base had a marijuana
equivalency of 142.4 kilograms of marijuana. U.S. Sentencing
Guidelines Manual (“USSG”) § 2D1.1, cmt. n.10 (2006) (drug
equivalency tables). When combined with the seven grams of
marijuana, these numbers yield a total marijuana equivalency of
143.289 kilograms of marijuana.
By comparison, under the 2007 guidelines drug
equivalency table in effect at the time of Davis’s sentencing,
the 4.41 grams of cocaine would again have a marijuana
equivalency of 882 grams of marijuana, but the 7.12 grams of
cocaine base would have a marijuana equivalency of 113.92
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kilograms of marijuana. 1 When combined with the seven grams of
marijuana, these figures yielded 114.809 kilograms of marijuana.
As this was the figure used by the probation officer in the PSR,
it is evident that the 2007 guidelines were used to calculate
Davis’s offense levels, despite the PSR’s narrative to the
contrary. Because there was no error committed by the probation
officer, Davis’s trial counsel did not err in failing to object
to the offense level calculation. 2
We have reviewed Davis’s pro se claims of ineffective
counsel and find them meritless. We have examined the entire
record in accordance with the requirements of Anders and have
1
Because Davis’s offense involved cocaine base, USSG
§ 2D1.1, cmt. n.10(D)(i) (2007) requires the probation officer
first to determine the base offense level for the quantity of
cocaine base involved in the offense: 7.12 grams of cocaine
base yields a base offense level of twenty-four. USSG
§ 2D1.1(c)(8) (2007). Next the probation officer calculates the
marijuana equivalency of the quantity of cocaine base using the
equivalency table found in USSG § 2D1.1, cmt. n.10(D)(i)(II)
(2007). With a base offense level of twenty-four, each gram of
cocaine base is equivalent to sixteen kilograms of marijuana.
Therefore, by multiplying 7.12 grams of cocaine base by 16
kilograms, the probation officer correctly arrived at a
marijuana equivalency of 113.92 kilograms of marijuana.
2
The application notes to USSG § 2D1.1 (2007) were amended
on May 1, 2008. Amendment 715 significantly revised the method
for determining the applicable offense level for cases involving
both crack cocaine and another controlled substance. While
application of Amendment 715 may affect Davis’s sentence, this
is an issue to be raised initially in the district court
pursuant to 18 U.S.C. § 3582(c)(2) (2006). See United States v.
Brewer, 520 F.3d 367, 373 (4th Cir. 2008).
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found no meritorious issues for appeal. We therefore affirm the
judgment of the district court. This court requires that
counsel inform Davis, in writing, of the right to petition the
Supreme Court of the United States for further review. If Davis
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Davis. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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