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United States v. Davis

United States District Court, E.D. Tennessee

May 2, 2017

UNITED STATES OF AMERICA
v.
DAEQUON CHARLES DAVIS

          MEMORANDUM AND ORDER

          Leon Jordan United States District Judge.

         The defendant pled guilty to conspiring to distribute and possess with the intent to distribute cocaine base. He will be sentenced on May 16, 2017. The United States Probation Office disclosed the Presentence Investigation Report (“PSR”) on March 23, 2017 [doc. 130].

         The defendant has filed one formal objection to the PSR, challenging his designation as a career offender. Additionally, at page three of his April 13, 2017 sentencing memorandum, the defendant raises a second, and untimely, PSR objection [doc. 145].[1] There, he argues that the PSR should apply a downward mitigating role adjustment to his offense level.

         For the reasons that follow, both objections will now be overruled.

         I.

         Career Offender

         As noted, by his formal objection the defendant challenges his classification as a career offender under United States Sentencing Guideline (“U.S.S.G.”) 4B1.1. A controlled substance defendant is deemed a career offender if, in material part, he “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a) (2016). “The term ‘two prior felony convictions' means (1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense . . ., and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of § 4A1.1(a), (b), or (c). . . .” Id. § 4B1.2(c). “Prior sentences are always counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense).” Id. § 4A1.2(a)(2).

         In this case, the defendant is designated a career offender based on two state court convictions for the sale of cocaine.[2] Both sentences were imposed on March 8, 2005. The defendant does not contest that each case is a felony conviction for a controlled substance offense, nor does he challenge the offense dates set forth in the PSR. Instead, the defendant argues that the convictions cannot be counted separately under §§ 4A1.1 and 4A1.2(a)(2) because the underlying offenses were not separated by an intervening arrest.

         The defendant is not correct. According to state court records appended to the PSR Addendum [doc. 151], the defendant was arrested on March 19, 2004, for the offenses constituting Washington County docket number 30021. Subsequent to that arrest, the defendant again sold cocaine on November 19, 2004. For that crime, he was convicted in Washington County docket number 31003.

         Again, guideline 4A1.2(a)(2) requires, in pertinent part, the following sequence of events: (1) defendant commits his first career offender predicate; (2) defendant is arrested for that offense; and (3) defendant commits his second career offender predicate after having been arrested for the first. That is exactly what happened here.

         The conduct underlying case 30021 took place in January and February of 2004. The defendant was arrested for those crimes on April 19, 2004, prior to engaging in the November 19, 2004 conduct which led to his conviction in case 31003. His PSR therefore correctly classifies him as a career offender, and his objection on that issue will be overruled.

         II.

         Mitigating Role

         Next, by his untimely second objection, the defendant argues that his offense level should be decreased pursuant to the mitigating role guideline, § ...


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