United States v. Joshua Davis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4934
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA AARON DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:15-cr-00030-D-1)
Submitted: February 19, 2021 Decided: March 17, 2021
Before WYNN, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
G. Alan DuBois, Federal Public Defender, Jennifer C. Leisten, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joshua Aaron Davis appeals from the district court’s judgment revoking his
supervised release and imposing a 59-month prison term. The district court determined
that Davis had violated the conditions of his supervised release by (1) possessing cocaine,
heroin, and methamphetamine, (2) possessing a firearm or other destructive device, and
(3) distributing and possessing with intent to distribute methamphetamine and conspiring
to commit the same. On appeal, Davis challenges his 59-month sentence, arguing that the
district court erred in classifying violations (1) and (3) as Grade A violations of supervised
release and that this misclassification increased his advisory policy statement range under
the U.S. Sentencing Guidelines Manual (2018) from 21 to 27 months’ imprisonment to the
51-to-60-months’ imprisonment range that the district court calculated. We affirm.
“A district court has broad, though not unlimited, discretion in fashioning a sentence
upon revocation of a defendant’s term of supervised release.” United States v. Slappy,
872 F.3d 202, 206 (4th Cir. 2017). “We will affirm a revocation sentence if it is within the
statutory maximum and is not plainly unreasonable.” Id. at 207 (internal quotation marks
omitted). Davis’ challenge to the district court’s calculation of his policy statement range
was not raised below. We thus review it for plain error only. United States v. Obey,
790 F.3d 545, 547 (4th Cir. 2015). To establish plain error, Davis must show that an error
occurred, it was plain, and the error affected his substantial rights. Id. “The term ‘plain’
error is synonymous with ‘clear’ or ‘obvious’ error. An error is plain if the settled law of
the Supreme Court or this circuit establishes that an error has occurred.” United States v.
Carthorne, 726 F.3d 503, 516 (4th Cir. 2013) (some internal quotation marks omitted;
2
internal citation omitted). We have discretion to correct such an error “only if it seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Obey, 790 F.3d
at 547 (internal quotation marks and brackets omitted).
After review of the record, * we conclude that Davis fails to establish plain error in
the calculation of his policy statement range. The district court determined that violations
(1) and (3) were Grade A violations of supervised release. We find no clear or obvious
error in the district court’s determination that Davis’ conduct amounted to a Grade A
violation of supervised release. Only one Grade A violation of supervised release was
needed for Davis’ policy statement range to be 51 to 60 months’ imprisonment. See USSG
§§ 7B1.1(b), 7B1.4(a), p.s., So Davis fails to demonstrate plain error. And he does not
establish that his 59-month revocation prison sentence is plainly unreasonable.
Accordingly, we affirm the revocation judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
*
Davis failed to comply with Fed. R. App. P. 28(a)(8)(A) (requiring that an
appellant’s argument contain “appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies”) in
challenging the district court’s May 11, 2020, and June 7, 2020, orders supplementing the
record. We therefore deem this contention abandoned, EEOC v. Md. Ins. Admin., 879 F.3d
114, 122 n.10 (4th Cir. 2018) (declining to address argument abandoned on appeal through
failure to comply with Rule), and have considered the record as supplemented by the May
11 and June 7 orders.
3