United States v. Darrell Davis

Case: 11-51244 Document: 00512222213 Page: 1 Date Filed: 04/26/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 26, 2013
No. 11-51244
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DARRELL DWAYNE DAVIS, also known as Darrell Dewayne Davis,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:00-CR-25-1
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Darrell Dwayne Davis, federal prisoner # 03142-180, appeals the denial
of his 18 U.S.C. § 3582(c)(2) motion to reduce his 235-month sentence for
conspiracy to possess crack cocaine with intent to distribute. The reduction
requested was authorized pursuant to United States Sentencing Guidelines
§ 1B1.10(a) and Amendment 750. See Dillon v. United States, 130 S. Ct. 2683,
2691 (2010). We review the district court’s denial for an abuse of discretion and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-51244
its factual findings for clear error. United States v. Evans, 587 F.3d 667, 672
(5th Cir. 2009).
In its order denying Davis’s § 3582(c)(2) motion, the district court stated
that, upon consideration of the 18 U.S.C. § 3553(a) factors, a further sentence
reduction was not warranted. Specifically, the district court noted that Davis
had been convicted of participating in a drug conspiracy that had lasted for at
least six years and which had led to the distribution of “multi-kilogram
quantities of crack cocaine.” The district court further observed that Davis had
possessed several firearms during the conspiracy and had shown an interest in
obtaining “cop-killing ammunition.” Finally, the district court stated: “The
Defendant was in trouble with authorities at least from the age of 14, exhibiting
progressively more dangerous and violent behavior. He was implicated in at
least one drive-by shooting and involved on more than one occasion with
threatening another with a firearm.”
Davis argues that the district court clearly erred by basing its denial on
unreliable evidence regarding the six-year duration of the conspiracy, the “multi-
kilogram” quantities of crack cocaine involved, and Davis’s possession of
firearms and ammunition. As evidence to the contrary, Davis offers that he was
indicted for a conspiracy lasting for under two years, that he was held
accountable for 1.69 kilograms of crack cocaine, and that when law enforcement
officials searched his residence, they found only one firearm.
The district court’s characterization of 1.69 kilograms of crack cocaine as
a “multi-kilogram” quantity is not inaccurate. Further, the facts relied upon by
the district court were sufficiently supported by information in the presentence
report (PSR). While Davis was found guilty of conspiracy to possess with intent
to distribute crack cocaine alleged in the indictment to have lasted from June
1998 to November 1999, the PSR describes transactions involving crack cocaine
between Davis and his co-defendants beginning in the summer of 1994. The
PSR also indicates that Davis possessed multiple firearms during the course of
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No. 11-51244
the conspiracy. Davis has offered no evidence to contradict these facts. See
United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012).
We need not decide whether the prohibition against considering bare
arrest records set forth in United States v. Johnson, 648 F.3d 273, 276-78 (5th
Cir. 2011), applies in § 3582(c)(2) proceedings. Even if Johnson’s rationale
applies, the arrests considered by the district court were supported adequately
in the PSR by “specific information about the conduct and circumstances relating
to the arrests.” Harris, 702 F.3d at 230 n.1; cf. Johnson, 648 F.3d at 274-75
(district court committed procedural error in relying on defendant’s arrest record
where the PSR “listed only . . . the date, the charges, the agency out of which the
arrest was processed, and the disposition” and “contained no information about
the underlying facts or circumstances of the arrests and no explanation of why
[the defendant] was not prosecuted”). Davis fails to offer any evidence showing
that the relevant information in the PSR was unreliable. See Harris, 702 F.3d
at 231.
Davis also argues that because the district court did not find that the §
3553(a) factors weighed against granting his first § 3582(c)(2) motion, it was
precluded from doing so in denying his second motion pursuant to the law of the
case doctrine. However, because the district court had never before considered
whether the 18 U.S.C. § 3553(a) factors warranted a sentence reduction below
235 months at the time that it considered the § 3582(c)(2) motion at issue, the
denial was not precluded by the law of the case. See Pepper v. United States, 131
S. Ct. 1229, 1250-51 (2011). Finally, Davis contends that the district court failed
to adequately consider his post-conviction rehabilitation efforts. The district
court implicitly considered Davis’s arguments regarding his post-conviction
rehabilitation but denied the motion based upon its consideration of the §
3553(a) factors; it was under no obligation to reduce his sentence. See Evans,
587 F.3d at 673.
AFFIRMED.
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