United States District Court, M.D. Pennsylvania
Matthew W. Brann United States District Judge.
September 30, 2016, a jury sitting in Williamsport,
Pennsylvania found the Defendant, Antoine Paris Davis, guilty
of conspiracy to distribute controlled substances in
violation of Title 21, United States Code, Section 846 and
possession with intent to distribute in violation of Title
21, United States Code, Section 841(a)(1). The jury
affirmatively answered two interrogatories as to whether the
Defendant was responsible for agreeing to distribute-and
possessing with intent to distribute-100 grams or more of
Court held a presentence conference in this matter on March
30, 2017. An Order scheduling briefing and sentencing and
noticing the parties that I was considering an upward
variance from the Guideline range of 120 months was issued on
April 6, 2017 and can be found at ECF No. 183. For the
reasons contained herein, I will impose an upward variance of
24 months, resulting in an ultimate sentence of 144 months or
THE DEFENDANT's MOTION TO APPOINT NEW COUNSEL IS
outset, I note that a letter from Mr. Davis was docketed by
the Clerk of Court on July 3 of this week. That letter
requests replacement of defense counsel, Mr. Shubin.
Third Circuit has explained that eleventh-hour attempts to
delay sentencing proceedings by, for instance, moving to
change counsel or moving to withdraw a guilty plea, may
freely be denied so long as the defendant will receive a fair
hearing. United States v. Hannibal, 663 F. App'x
206, 210 (3d Cir. 2016) (Krause, J.).A fair sentencing
hearing “requires that a defendant receive notice of,
and a reasonable opportunity to comment on, (a) the alleged
factual predicate for his sentence, and (b) the potential
punishments which may be imposed at sentence.”
where a sentencing hearing is not the “appropriate
venue” for the defendant to raise the particular issues
of which he complains in a new counsel motion, such a
petition is rightly denied at that juncture. United States v.
Thomas, 48 F. App'x 382, 384 (3d Cir. 2002).
in resolving motions of that nature, the Court must consider
“the harm to the administration of justice” and
the “delay in the resolution of the matter.”
United States v. Fattah, 159 F.Supp.3d 545, 548
(E.D. Pa. 2016) (Bartle, J.).
I note that, pursuant to the decision of the United States
Court of Appeals for the Third Circuit in United States
v. Welty, 674 F.2d 185, 187 (3d Cir. 1982), the concerns
raised in Mr. Davis's letter to the Court do not
constitute good cause for substitution. The allegations
contained therein are of questionable veracity, and Mr. Davis
has nevertheless failed to show how any of those allegations
materially impacted either Mr. Shubin's representation or
Mr. Davis's right to a fair sentencing hearing. To the
contrary, Mr. Shubin has demonstrated vigorous advocacy on
Mr. Davis's behalf, as he does for all of his clients.
Neither is today's sentencing hearing the proper venue
for most of the concerns Mr. Davis advances. Indeed,
proceeding without the assistance of Mr. Shubin would not be
a competent or advisable decision.
those who review this matter later on, I will note from the
outset that my experiences with Mr. Davis over the past year
and a half have taught me that he is a first-class
manipulator who attempts to twist claims of little moment and
questionable truth into issues of genuine legal significance.
Instead, his schemes often accomplish nothing more than
wasting the Court's time while it searches for the truth.
This is one representative instance of Mr. Davis's many
attempts to turn nothing into something. Like his earlier
efforts to manipulate the Court, this one fails as well.
Though mesmerizing to some, Mr. Davis's arguments are
unpersuasive to me.
the motion to substitute new counsel is denied, and Mr.
Shubin will continue to represent Mr. Davis.
BACKGROUND OF SENTENCING PROCEEDING.
accordance with two cases by the Supreme Court of the United
States: the first entitled Gall v. United States and
the second entitled Nelson v. United States, I am
required to engage in a three-step process.
I will calculate the guideline range based upon the
sentencing Guidelines promulgated by the United States
I will formally rule on any motions for departure and state
the impact, if any, on the Guideline range.
I will exercise discretion and consider the factors set forth
at Title 18, United States Code, Section 3553(a). Following a
decision by the Supreme Court in United States v.
Booker, the sentencing guidelines are to be treated as
advisory rather than as mandatory. Therefore, although I am
required to start with the Guidelines as an initial
benchmark, I will not presume that the Guideline range is
reasonable. Rather, I will make an individualized assessment
based upon the facts presented.
THE DEFENDANT'S OBJECTION TO UNITED STATES SENTENCING
GUIDELINE § 3C1.1'S OBSTRUCTION OF JUSTICE OR
IMPEDING THE ADMINISTRATION OF JUSTICE ENHANCEMENT IS
Defendant's only substantive objection to the Presentence
Report relates to the application of United States Sentencing
Guideline § 3C1.1's obstruction of justice or
impeding the administration of justice enhancement, as
implemented at paragraphs 20 and 21 of the Presentence
Report. That objection is OVERRULED.
Guideline provides that “[i]f (1) the defendant
willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant
offense of conviction, and (2) the obstructive conduct
related to (A) the defendant's offense of conviction and
any relevant conduct; or (B) a closely related offense,
increase the offense level by 2 levels.”
Note 4 to that Guideline provides “a non-exhaustive
list of examples of the types of conduct to which this
adjustment applies.” Example 4(C) on that list is
“producing or attempting to produce a false, altered,
or counterfeit document or record during an official
investigation or judicial proceeding.”
Application Note 9 provides that “Under this section,
the defendant is accountable for the defendant's own
conduct and for conduct that the defendant aided or abetted,
counseled, commanded, induced, procured, or willfully
of the obstruction enhancement was based upon the following
conduct: After the search of 321 Tinsman Avenue, an apartment
shared by Mr. Davis, his girlfriend Angelie Lopez, and Mr.
Davis's co-conspirator Raheem Jarmar Ruley, the three
suspects were arrested and taken to Lycoming County Prison.
series of recorded prison conversations with his mother,
Donna Burney Ruley, Mr. Ruley stated that Mr. Davis had asked
him to take responsibility for the drugs recovered by police
from the apartment. During these discussions, Mr. Ruley
stated, “I ain't taking that, ” and
ultimately agreed with his mother that Mr. Davis's
proposal that he accept full responsibility for the drugs was
“a no go.”
following the return of the federal Indictment on January 14,
2016, Mr. Ruley and Mr. Davis were later held in custody
together at the Columbia County Prison. During that time, Mr.
Ruley signed the so-called “Affidavit of Truth, ”
a document that gained particular notoriety for all the wrong
reasons throughout the pendency of this litigation. The
Affidavit, dated March 3, 2016, stated first, that there
never was any agreement between Mr. Davis and Mr. Ruley to
distribute drugs and second, that Mr. Davis was not involved
in any way with drug activity. Mr. Ruley and Mr. Davis had
the Affidavit notarized, and Mr. Ruley swore that that its
contents were “true and correct.” Mr. Davis would
later introduce the Affidavit of Truth in support of certain
pretrial motions and as substantive evidence at trial.
at his change of plea hearing and to no one's surprise,
Mr. Ruley admitted that the Affidavit of Truth was anything
but veracious, acknowledging full well that the averments
contained therein not only were false but were actually
composed by Mr. Davis for Mr. Ruley to sign.
view, even the most cursory application of the above guidance
to the operative facts reveals that the enhancement for
obstructing or impeding the due administration of justice is
certainly warranted to punish such unabashed gamesmanship.
the Guideline calculations contained within the Pre-sentence
Report remain unchanged.
PURSUANT TO UNITED STATES SENTENCING GUIDELINE §
5G1.1(B), THE GUIDELINE RANGE IS 120 MONTHS.
now calculate the Guideline range. A total offense level of
twenty-six (26) and a criminal history category of three III
suggest a range of imprisonment of 78 to 97 months.
based upon the jury's heroin quantity finding, Title 21,
United States Code, Section 841(b)(1)(B) provides for a
mandatory minimum term of imprisonment of 60 months, which
minimum term of imprisonment is then doubled to 120 months
pursuant to the Government's filing of an Information
Establishing a Prior Felony Drug Conviction under Title 21,
United States Code, Section 851. That Information can be
found at ECF No. 48.
Defendant has not denied the Information Establishing a Prior
Felony Drug Conviction as to the 1999 Lycoming County Court
of Common Pleas case, with the understanding that any
challenge to a prior conviction that is not made before
sentence is imposed may not be raised thereafter to attack
the ultimate sentence.
these circumstances, United States Sentencing Guideline
§ 5G1.1(b) states that “[w]here a statutorily
required minimum sentence is greater than the maximum of the
applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence.” As the
United States Court of Appeals for the Fifth Circuit has
explained, “For those situations in which the mandatory
minimum exceeds the range for the entire offense level, the
‘guideline sentence' would thus be the same as the
‘guideline range, ' even if it involves a
‘range' of only one number.” United
States v. Carter, 595 F.3d 575, 580-81 (5th Cir. 2010)
(per curiam). The United States Court of Appeals for the
District of Columbia Circuit confirmed as much, noting that
“where the mandatory minimum calls for a sentence
longer than anything in the guideline range, the statute
replaces the guideline range and becomes the guideline
sentence.” In re Sealed Case, 722 F.3d 361,
367 (D.C. Cir. 2013).
reviewing a sentence, the courts of appeal thus typically
consider the final guideline range (after application of a
mandatory minimum) as the baseline for measuring the
reasonableness of a variance. See United States v.
Varsanyi, 392 F. App'x 15 (3d Cir. 2010) (Vanaskie,
J.) (affirming substantive reasonableness of upward variance
based upon 120-month guideline sentence that resulted from
application of 10-year mandatory minimum); United States
v. Broussard, 669 F.3d 537 (5th Cir. 2012) (evaluating
substantive reasonableness of upward variance based upon
120-month guideline sentence that resulted from application
of 10-year mandatory minimum). See also United States v.
Murphy, 591 F. App'x 377, 380 (6th Cir. 2014)
(“The term ‘guideline sentence' in section
5G1.1(a) is synonymous with ‘recommended sentence,
' ‘advisory sentence, ' or ‘Guideline
reason for this prioritization is that legislation and the
guidelines themselves both make clear that mandatory minimums
(or maximums) are determinative of the guideline range to the
extent that they may cabin or extend the range's upper or
lower bounds. As the Supreme Court of the United States
recently reiterated in Dorsey v. United States, 567