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United States v. Davis

United States Court of Appeals, Eighth Circuit

June 3, 2016

United States of America, Plaintiff- Appellee
v.
Deiago Davis, Defendant-Appellant

          Submitted: April 11, 2016

         Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

          Before RILEY, Chief Judge, WOLLMAN and MURPHY, Circuit Judges.

          MURPHY, Circuit Judge.

         Deiago Davis pled guilty to criminal contempt of court in violation of 18 U.S.C. § 401(3) after refusing to testify before a grand jury. After applying four cross references in the sentencing guidelines, the district court sentenced him to 46 months imprisonment. Davis appeals, arguing that the district court improperly applied the guidelines. We vacate and remand for resentencing.

          I. Background.

         On August 1, 2011 Davis was riding in the back seat of a vehicle that was stopped by law enforcement officers in Cedar Rapids, Iowa. During that process, passenger Marvin Hicks threw a loaded handgun from the front seat into the back which the officers found and later discovered had been stolen during a home burglary. Hicks was detained on charges of possession of stolen property, carrying weapons, and possession of a firearm as a felon. Davis provided a statement to the police, but was released without charges.

         On October 28, 2014 Davis was called to testify before a federal grand jury which was investigating Hicks' August 1 traffic stop. Davis refused to testify and invoked his right to counsel. A second writ was issued to compel his appearance before the grand jury on November 18, 2014, but his counsel indicated he would assert his privilege against self incrimination under the Fifth Amendment. The government secured an order under 18 U.S.C. § 6002 requiring him to testify, but providing that his testimony would not later be used against him. On November 18 Davis once again refused to testify before the grand jury despite the § 6002 order.

         As a result of his noncompliance with the order, Davis was indicted on one count of criminal contempt of court, 18 U.S.C. § 401(3), to which he later pled guilty. The guideline for sentencing criminal contempt requires the application of "the most analogous offense guideline." See U.S.S.G. §§ 2J1.1, 2X5.1. The parties agree that the most analogous here is the guideline for obstruction of justice, U.S.S.G. § 2J1.2. That guideline sets the base offense level at 14 but provides for the application of the accessory after the fact guideline (U.S.S.G. § 2X3.1) if the "offense involved obstructing the investigation or prosecution of a criminal offense . . . [and] if the resulting offense level is greater than that determined above." U.S.S.G. § 2J1.2(a), (c)(1). The presentence report indicated that section 2X3.1 applied to Davis' case. Under section 2X3.1, the base offense level is "6 levels lower than the offense level for the underlying offense." The presentence report concluded that the "underlying offense" was Hicks' conviction for being a felon in possession of a firearm since Davis obstructed that prosecution.

         In calculating the offense level for the underlying offense, the court must "[a]pply the base offense level plus any applicable specific offense characteristics that were known, or reasonably should have been known, by the defendant." U.S.S.G. § 2X3.1, app. note 1. Neither the presentence report nor any other documents in the record explain how Hicks' offense level was calculated, but we take judicial notice of the filings in his criminal case, United States v. Hicks, 1:14-cr-00134-LRR (N.D. Iowa). See Fed.R.Evid. 201; Insulate SB, Inc. v. Advanced Finishing Sys., Inc., 797 F.3d 538, 543 n.4 (8th Cir. 2015).

         Hicks' base offense level for possessing the handgun was 20 because he had a prior felony for either a crime of violence or a controlled substance offense at the time. See U.S.S.G. § 2K2.1(a)(4)(A). The district court increased Hicks' offense level by six because of two specific offense characteristics under section 2K2.1(b). He received a two level increase because the firearm he possessed had been stolen, id. § 2K2.1(b)(4)(A), and a four level increase because he had possessed the firearm "in connection with another felony offense, " namely the offense of carrying weapons under Iowa Code § 724.4(1), id. § 2K2.1(b)(6)(B). The presentence report then reported a total offense level of 26 for the underlying offense.

         After the presentence report determined that the underlying offense level was 26, it calculated Davis' offense level to be 20. See U.S.S.G. § 2X3.1. Davis argued at sentencing that the presentence report improperly increased Hicks' offense level by four, claiming that an offense for carrying weapons under Iowa Code § 724.4(1) does not qualify as "another felony offense" under U.S.S.G. § 2K2.1(b)(6)(B). Davis also sought a downward variance or departure from the sentencing guidelines. The district court rejected both arguments and concluded that Davis' base offense level was 20. The court then subtracted three levels for acceptance of responsibility and determined that Davis' guidelines range was 46 to 57 months based on his criminal history category of V. The court sentenced him to 46 months.

         Davis appeals the district court's guidelines calculation which was determined by starting with that of the underlying offense, Hicks' possession of the handgun. Davis argues that the district court erred in its calculation of the underlying base offense level and in its application of the two specific offense enhancements to the underlying offense.

         II. Analysis.

         The district court determined Davis' offense level under section 2X3.1 by subtracting six levels from "the offense level for the underlying offense." In calculating the offense level for the underlying offense, a court applies "the base offense level plus any applicable specific offense characteristics that were known, or reasonably should have been known, by the defendant." U.S.S.G. § 2X3.1, app. note 1. Here, the underlying offense is Hicks' conviction for being a felon in possession of a firearm. ...


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