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United States v. Davis

United States District Court, M.D. Pennsylvania

July 7, 2017

UNITED STATES OF AMERICA
v.
ANTOINE PARIS DAVIS, Defendant.

          MEMORANDUM OPINION

          Matthew W. Brann United States District Judge.

         On 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 heroin.

         The 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 12 years.

         I. THE DEFENDANT's MOTION TO APPOINT NEW COUNSEL IS DENIED.

         At the 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.

         The 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.” Id.

         Likewise, 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).

         Further, 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.).

         Lastly, 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.

         For 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.

         Accordingly, the motion to substitute new counsel is denied, and Mr. Shubin will continue to represent Mr. Davis.

         II. BACKGROUND OF SENTENCING PROCEEDING.

         In 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.

         First, I will calculate the guideline range based upon the sentencing Guidelines promulgated by the United States Sentencing Commission.

         Second, I will formally rule on any motions for departure and state the impact, if any, on the Guideline range.

         Third, 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.

         III. THE DEFENDANT'S OBJECTION TO UNITED STATES SENTENCING GUIDELINE § 3C1.1'S OBSTRUCTION OF JUSTICE OR IMPEDING THE ADMINISTRATION OF JUSTICE ENHANCEMENT IS OVERRULED.

         The 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.

         That 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.”

         Application 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.”

         Further, 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 caused.”

         Application 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.

         In a 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.”

         Thereafter, 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.

         However, 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.

         In my 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.

         Accordingly, the Guideline calculations contained within the Pre-sentence Report remain unchanged.

         IV. PURSUANT TO UNITED STATES SENTENCING GUIDELINE § 5G1.1(B), THE GUIDELINE RANGE IS 120 MONTHS.

         I will 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.

         However, 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.

         The 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.

         Under 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).

         When 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 range.'”).

         The 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 ...


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