United States v. Omar Davis

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0612n.06
Case No. 18-6332
UNITED STATES COURT OF APPEALS
FILED
Dec 11, 2019
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee,
) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v.
) DISTRICT OF KENTUCKY
)
OMAR DAVIS,
)
Defendant-Appellant. ) OPINION
BEFORE: McKEAGUE, BUSH, and NALBANDIAN, Circuit Judges.
McKEAGUE, Circuit Judge. Omar Davis appeals a judgment after a guilty plea entered
in the United States District Court for the Eastern District of Kentucky. Davis pled guilty to three
counts: conspiring to distribute methamphetamine in violation of 18 U.S.C. § 846, brandishing a
firearm during and in relation to a drug trafficking crime in violation of 21 U.S.C. § 924(c), and
kidnapping in violation of 18 U.S.C. § 1201(a)(1). He now argues certain defects leading up to
his guilty plea make his plea invalid, and as a result, his judgment cannot stand. We disagree and
therefore AFFIRM.
I. Background
To make his argument, Davis essentially points to two so-called defects in his plea
proceedings: first, time pressure from the district court to review information received from the
government the night before trial, and second, confusion over the length of his potential sentence.
Case No. 18-6332, United States v. Davis
Prior to his upcoming trial, Davis filed a series of discovery requests, seeking general
information under Federal Rule of Criminal Procedure 16(a); material required under Brady v.
Maryland, 373 U.S. 83 (1963); and relevant statements by government witnesses, pursuant to
18 U.S.C. § 3500 (the “Jencks Act”).
Trial was set for December 12, 2017. The day before trial, defense counsel received
additional discovery materials he had requested a day earlier from the government. The
government claimed that, in an effort to accommodate the defendant’s request, it provided a set of
documents typically provided on the day of trial in advance of calling a witness, as is permitted by
the Jencks Act and Federal Rule of Criminal Procedure 26.2. Moreover, the government stated it
had already provided all substantive witness statements four or five months prior. At the pretrial
conference on the morning of trial, defense counsel acknowledged he did not have time to read the
materials and could not speak to whether the materials would change his recommendation to Davis
on whether to go to trial. The court found that the material was not voluminous, and most (but not
all) was likely Jencks material anyway. The court decided to select the jury (the jury pool was
waiting at the time) and then give defense counsel time to look over the material, talk with the
defendant, decide if a continuance would be necessary, and generally think through strategy going
forward.
Shortly after the pretrial conference, Davis entered a guilty plea to three counts: conspiring
to distribute methamphetamine, brandishing a firearm during and in relation to a drug trafficking
crime, and kidnapping. In his plea agreement, Davis acknowledged that he understood the
agreement, his counsel had fully explained the agreement, and he had entered into the agreement
voluntarily. In the plea proceedings, the district court took Davis through the requirements of
Federal Rule of Criminal Procedure 11, including questioning Davis about his competency,
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inquiring whether he was entering the guilty plea knowingly and voluntarily, describing the rights
he was giving up, and explaining the essential terms of the plea agreement and underlying charges,
among other discussions. The Presentence Investigation Report (PSR) that followed
recommended a guideline range between 262 and 327 months, based on a Criminal History
Category of III and adjusted offense level of 37. The court ultimately sentenced Davis to a term
of 192 months, plus the 84 mandatory months for the § 924(c) firearm charge. Davis appeals this
judgment, arguing his plea agreement was invalid because it was not entered into knowingly,
intelligently, and voluntarily. We disagree.
II. Analysis
“A guilty plea is valid if it is entered knowingly, voluntarily, and intelligently by the
defendant.” United States v. Webb, 403 F.3d 373, 378 (6th Cir. 2005). When a defendant
challenges his guilty plea for the first time on appeal, we review the validity of his plea for plain
error.1 Id. Plain-error review involves four steps:
First, there must be an error or defect—some sort of [d]eviation from a legal rule—
that has not been intentionally relinquished or abandoned, i.e., affirmatively
waived, by the appellant. Second, the legal error must be clear or obvious, rather
than subject to reasonable dispute. Third, the error must have affected the
appellant’s substantial rights, which in the ordinary case means he must
demonstrate that it affected the outcome of the district court proceedings. Fourth
and finally, if the above three prongs are satisfied, the court of appeals has the
discretion to remedy the error—discretion which ought to be exercised only if the
error seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.
United States v. Ataya, 884 F.3d 318, 322–23 (6th Cir. 2018) (alterations in original) (quoting
Puckett v. United States, 556 U.S. 129, 135 (2009)). As to the third prong, for a defendant seeking
1
In signing the plea agreement, Davis waived his right to appeal. But that waiver provision does
not cover appeals alleging an involuntary plea. Davis’s claims in this appeal go “to the heart of
whether his guilty plea, including the waiver of appeal, is enforceable.” United States v. Ataya,
884 F.3d 318, 322 (6th Cir. 2018).
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reversal of his conviction, plain error requires a heightened showing of prejudice. Id. at 323. In
other words, the defendant “is obligated to show a reasonable probability that, but for the error, he
would not have entered the plea.” Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74,
76 (1993)).
For guilty pleas, district courts must follow the mandates of Federal Rule of Criminal
Procedure 11. The purpose of Rule 11 is to function as a set of requirements that ensures a district
court is satisfied that a plea is knowing, intelligent, and voluntary. Webb, 403 F.3d at 378; see
also United States v. Fuller, 192 F. App’x 441, 443 (6th Cir. 2006). Rule 11 requires that “a
district court verify that the defendant’s plea is voluntary and that the defendant understands his
or her applicable constitutional rights, the nature of the crime charged, the consequences of the
guilty plea, and the factual basis for concluding that the defendant committed the crime charged.”
Webb, 403 F.3d at 378–79. Davis concedes the district court adhered to the requirements set forth
in Rule 11. And if the whole purpose of Rule 11 is to ensure a voluntary and knowing plea, it
follows that Davis’s plea agreement was just that: voluntary and knowing. Davis’s claims—about
time pressure and confusion over the length of his sentence—are of the type that are normally
foreclosed by a Rule 11-compliant plea colloquy.
First, Davis claims he received discovery material from the government the night before
trial and argues the accompanying time pressure from the district court to review those materials
amounted to “duress,” therefore rendering his plea involuntary. But this occurred before the plea
colloquy, where the district court specifically asked Davis whether he had enough time to talk to
his lawyer, review the indictment, and review the plea agreement. To which Davis responded,
“Yes.” Davis also acknowledged he was not forced or coerced to sign the agreement and he signed
it under his own free will and volition. At the time of these questions, Davis would have known
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he felt pressured to make a quick decision without adequate information. But Davis said he had
enough time.
Second, Davis argues there was confusion over whether he could be convicted of two
§ 924(c) firearm counts: brandishing a firearm in relation to (1) the kidnapping offense and/or
(2) the drug possession offense. Conviction on two § 924(c) counts would result in a higher
sentence. So he wasn’t sure of his potential sentence. And, according to Davis, this confusion
prevented him from making a knowing plea. But Davis does not argue he was misinformed of his
minimum or maximum exposure. He can’t. Davis conceded the district court followed Rule 11,
thus adequately informing him of his minimum and maximum sentence. See United States v.
Simons, 752 F. App’x 291, 295 n.2 (6th Cir. 2018) (noting under Rule 11 that district courts need
only warn of the minimum and maximum penalties, not the “consequences” of a plea (quoting
Smith v. United States, 400 F.2d 860, 862 (6th Cir. 1968)); cf. United States v. Monie, 858 F.3d
1029, 1033 (6th Cir. 2017) (finding a plea colloquy lacks fairness and integrity when a court creates
misapprehension regarding the maximum sentence); United States v. Mitchell, 398 F. App’x 159,
162 (6th Cir. 2010) (noting a defendant could challenge erroneous information relating to minimum
and maximum sentences).
Let’s assume, though, the Rule 11 plea colloquy did not actually ensure Davis entered into
a knowing and voluntary plea. To argue his plea agreement is invalid still, Davis would need to
point to some sort of legal error that was “clear or obvious” and not “subject to reasonable dispute.”
Ataya, 884 F.3d at 322 (quoting Puckett, 556 U.S. at 135). Not only that, he would have to show
a reasonable probability that but for those errors he would not have accepted the plea agreement.
Davis fails to do so.
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Davis’s duress claim is based in part on the district court’s statements that it did not want
to keep the jury pool waiting. And, according to Davis, this pressure, coupled with the need to
review new material, made it impossible for him to enter a knowing and voluntary plea. This claim
is belied by the record. True, the district court did not want to keep the jury pool waiting. But the
district court also told counsel that after jury selection, defense counsel could take time with the
defendant “and decide, do you need a continuance, do you need the afternoon to kind of work
through this material . . . .” This is not the kind of “pressure” Davis claims it to be. And it is not
a clear error by the district court. Likewise, it is not clear or obvious that receipt of the discovery
materials the night before trial rendered his plea unknowing. Davis does not even describe any
new information from these materials that would have changed his mind about the plea. And
again, the burden is on Davis to show a reasonable probability that but for this alleged error he
would not have accepted his guilty plea. Martin, 668 F.3d at 791. Davis relies on United States
v. Morris, 470 F.3d 596 (6th Cir. 2006), to argue prejudice is presumed because of the lack of time
his counsel had to review important material. But Morris concerned an ineffective assistance of
counsel claim. Id. at 601. And that makes sense. If Davis has any potential claim here, it’s against
his counsel for allegedly letting Davis go forward with the plea without adequate information.
However, he does not have a claim that his plea agreement is invalid. To reiterate, Davis doesn’t
point to any new information nor does the record reflect he was under pressure to make a quick
decision.
Further, the confusion over Davis’s possible sentence likewise does not invalidate his plea.
Conviction on two § 924(c) firearm counts would have obviously resulted in a higher sentence,
and it is this confusion that prevented Davis from making a knowing and intelligent decision (or
so he claims). But this claim fails for two reasons. First, there wasn’t any confusion. In the
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pretrial conference (which was before the plea negotiations), the district court told Davis’s counsel
that only one § 924(c) count would apply and that the jury instructions would be revised to the
extent they reflected a contrary interpretation.2 Second, even if Davis’s counsel was not satisfied
with this exchange and remained uncertain, the district court’s comments that only one § 924(c)
conviction would result was not an affirmative misstatement of the maximum possible sentence
sufficient to invalidate a guilty plea. Compare United States v. Dixon, 479 F.3d 431, 434–36 (6th
Cir. 2007) (finding a misstatement by counsel relating to the potential sentence not enough to
render the plea agreement invalid because counsel never gave the defendant erroneous advice
concerning the potential sentence), with United States v. Hogg, 723 F.3d 730, 739 (6th Cir. 2013)
(finding the district court violated Rule 11 when it misstated the applicability of statutory
amendment which would affect the length of the sentence) and Pitts v. United States, 763 F.2d
197, 201 (6th Cir. 1985) (finding misadvice by counsel and misadvice by the trial court on
defendant’s maximum possible sentence enough to require an evidentiary hearing on the issue).
Finally, Davis argues the PSR recommended a sentence far higher than what the parties
had agreed upon. Davis states his counsel advised him the resulting sentence would be 135 to 168
months, plus the consecutive 84 months for the § 924(c) charge. The PSR recommended 262 to
327 months, plus the 84 months. And the district court ultimately sentenced Davis to 192 months,
plus 84 months. But a “plea is not rendered involuntary merely because a prediction that a guilty
2
Davis argues that the “transcript is not clear whether the defense agreed to or was satisfied that
this concern was addressed.” Plain error review requires a “clear” error. Davis, in effect, defeats
his own argument by stating the record wasn’t clear on this point. All to say, the district court
stated, “I don’t read it as resulting in two 924(c)s . . . I don’t read the indictment as requiring the
jury instruction that leads to two 924(c) convictions.” There was no clear or obvious confusion on
the § 924(c) issue.
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plea will result in a light sentence does not come true.” Stout v. United States, 508 F.2d 951, 953
(6th Cir. 1975); see also United States v. Ford, 15 F. App'x 303, 308 (6th Cir. 2001).3
For these reasons, we find that Davis’s plea agreement was not invalid. We therefore
AFFIRM the district court’s judgment.
3
Again, Davis does not assert that this purported misadvice rendered his counsel’s assistance
ineffective.
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