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United States v. Davis

United States District Court, D. Kansas

May 26, 2016

UNITED STATES OF AMERICA Plaintiff,
v.
CHICO DAVIS, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT COURT

         In 2012, Defendant Chico Davis entered a guilty plea to eight counts of possession of a firearm by a prohibited person and two counts of distribution of a controlled substance. He was sentenced to 308 months in prison, which was later reduced to 271 months. Proceeding pro se, Davis now moves to vacate his sentence pursuant to 28 U.S.C. § 2255. He argues that his sentence should be vacated or reduced in light of the U.S. Supreme Court decision Johnson v. United States, [1] which found the “residual clause” of the Armed Career Criminal Act (“ACCA”) to be unconstitutionally vague. For the reasons set forth below, the Court denies Davis' motion.

         I. Factual and Procedural Background

         On September 14, 2011, Davis was indicted on 14 counts of possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(1) and four counts of distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1). On June 4, 2012, Davis entered guilty pleas to eight counts of possession of a firearm by a prohibited person and two counts of distribution of a controlled substance.

         Before sentencing, the U.S. Probation Office prepared a Presentence Investigation Report (“PSR”) based on the 2011 U.S. Sentencing Guidelines Manual. For Count Group One (the eight firearms convictions), Davis' base offense level was calculated to be 22 under U.S.S.G. § 2K2.1(a)(3) because the offense involved a semi-automatic firearm that was capable of accepting a large capacity magazine and Davis committed the offense after sustaining a felony conviction for a “crime of violence.” The PSR does not state which of Davis' prior convictions qualified as a crime of violence, but based on Davis' criminal history, the only previous conviction that it could possibly be is his 2000 conviction for a violation of 18 U.S.C. § 924(c)- brandishing a firearm during and in relation to a crime of violence. Davis then received a four-point enhancement because he possessed 17 firearms, and he received another four-point enhancement because one of his firearms had an obliterated serial number. Overall, Davis' adjusted offense level was calculated to be 29.[2] For Count Group Two (the two narcotics convictions), Davis' base and adjusted offense levels were calculated to be 32.

         Because Count Group Two was the greater of the adjusted offense levels, the adjusted offense level of 32 became controlling for the calculations. After the multiple count adjustment, Davis' combined adjusted offense level was 34. Next, Davis' offense level was reduced by three levels for accepting responsibility for the offense. Accordingly, Davis' total offense level was calculated to be 31.

         The PSR further determined that Davis had a criminal history score of eight. According to U.S.S.G. Chapter 5, Part A, a criminal history score of eight establishes a criminal history category of IV. Based on a total offense level of 31 and a criminal history category of IV, the guideline imprisonment range is 151 months to 188 months.

         Davis was sentenced on September 24, 2012. The Court varied upward and sentenced Davis to a controlling term of 308 months. Davis appealed to the Tenth Circuit, and on October 22, 2013, the Tenth Circuit affirmed Davis' sentence.

         On February 25, 2015, Davis' sentence was reduced from 308 months to 271 months under 18 U.S.C. § 3582(c)(2). Less than a month later, Davis filed his first motion to vacate under 28 U.S.C. § 2255, arguing that his trial counsel was ineffective. The District Court denied Davis' motion on June 25, 2015, and the Tenth Circuit denied a certificate of appealability on January 7, 2016.

         Davis filed a second motion to vacate under 28 U.S.C. § 2255 on June 20, 2016, on grounds that his sentence violated the Supreme Court's decision in Johnson. The Government moved to dismiss this motion on July 27, 2016, arguing that it was a second and successive application for relief and that the district court did not have jurisdiction to resolve the matter without prior approval from the circuit court. Davis then moved to withdraw his motion so he could seek approval from the Tenth Circuit. The Court granted this motion. On February 27, 2017, the Tenth Circuit issued an order allowing Davis to file a second and successive motion challenging his sentence. That same day, Davis filed his current § 2255 motion with the Court.

         II. Analysis

         Davis generally argues that the U.S. Supreme Court's decision in Johnson invalidates the sentence imposed on him in this case. Reading Davis' argument liberally, the Court assumes that Davis is arguing that his prior conviction for brandishing a firearm during and in relation to a crime of violence was improperly considered a “crime of violence” and wrongfully used to calculate the base offense level for Count Group One as 22 instead of 20 under U.S.S.G. § 2K2.1. As explained more fully below, the Court rejects Davis' argument.

         A. Johnson Does Not Invalidate Davis' Sentence.

         In Johnson, the Supreme Court held that certain language in the ACCA violated “the Constitution's prohibition of vague criminal laws.”[3] To understand the Johnson decision and Davis' argument, some background information may be helpful.

         Federal law prohibits convicted felons from shipping, possessing, and receiving firearms.[4] In general, the ACCA punishes violation of this ban by a prison sentence of “not more than 10 years.”[5] But the ACCA imposes a minimum sentence of fifteen years if the violator has three or more earlier convictions for a “serious drug offense” or a “violent felony.”[6] A “violent felony” was defined in the ACCA as follows:

[A]ny crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.[7]

         The closing words of this definition, italicized above, are known as the “residual ...


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