United States v. Tyrone Davis

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2578
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Tyrone Davis, also known as T-Row, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 27, 2006
Filed: November 30, 2006
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Before RILEY, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Tyrone Davis (Davis) pled guilty to conspiring to distribute and possess with
intent to distribute 50 grams or more of cocaine base mixture (crack) in violation of
21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(iii). Over Davis’s objection, the district
court1 calculated a Category VI criminal history based on 15 criminal history points,
which included 3 points for a sentence imposed following a court-martial proceeding
that found Davis guilty of various military criminal charges. The district court
sentenced Davis to 292 months’ imprisonment and 5 years’ supervised release. On
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
appeal, Davis’s counsel moved to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967). Counsel in his Anders brief and Davis in a pro se
supplemental brief argue the district court erred by assigning the disputed criminal
history points because the sentences were misdemeanors and were not sufficiently
long to warrant the assignment of 3 criminal history points. Counsel also argues the
court should have applied the rule of lenity at sentencing, and Davis contends he
should have been sentenced for cocaine as opposed to crack. By separate motion,
Davis requests the appointment of new counsel. We affirm.
“We review de novo the district court’s application of the guidelines and review
for clear error its underlying findings of fact.” United States v. Scott, 448 F.3d 1040,
1043 (8th Cir. 2006). After the court-martial proceedings, the military court sentenced
Davis to four consecutive sentences of 12 months’ imprisonment. By asssessing 3
criminal history points for Davis’s military convictions, the district court properly
calculated Davis’s criminal history points because the four consecutive sentences were
imposed in related cases. See U.S.S.G. § 4A1.2(a)(2) (prior sentences imposed in
related cases must be treated as one sentence for purposes of U.S.S.G. § 4A1.1(a)); id.
cmt. n.3 (prior sentences resulting from offenses that were consolidated for trial and
sentencing are related).
The remaining arguments also fail. Davis did not object to the recommendation
in the presentence report that he should be held responsible for 1.5 kilograms of
cocaine base for a base offense level of 38, see United States v. Beatty, 9 F.3d 686,
690 (8th Cir. 1993), and the rule of lenity does not apply because Davis’s sentence
was not based on any ambiguous Guidelines provision, see United States v. Oetken,
241 F.3d 1057, 1060 (8th Cir. 2001). Further, having reviewed the record
independently under Penson v. Ohio, 488 U.S. 75, 80 (1988), we find no other
nonfrivolous issue.
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Accordingly, we affirm the district court’s judgment, grant counsel’s motion
to withdraw, and deny Davis’s request for new counsel.
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