UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4020
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY D. DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-04-98)
Submitted: January 11, 2006 Decided: February 8, 2006
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bruce A. Johnson, Jr., BRUCE A. JOHNSON, JR., L.L.C., Bowie,
Maryland, for Appellant. Paul J. McNulty, United States Attorney,
John Eisinger, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony D. Davis was found guilty at the conclusion of a
bench trial of thirteen counts of a second superceding indictment
charging him in Count One conspiracy to transport, possess, and
sell stolen motor vehicles, in violation of 18 U.S.C. § 371; Counts
Two through Five interstate transportation of stolen motor
vehicles, in violation of 18 U.S.C. § 2312; Counts Six through Nine
possess, conceal, and sell stolen motor vehicles, in violation of
18 U.S.C. § 2313, Counts Ten through Thirteen interstate
transportation of fraudulent motor vehicle titles, in violation of
18 U.S.C. § 2314. The district court sentenced Davis to fifty-
seven months’ imprisonment on each of the thirteen counts, to be
served concurrently with one another, three years of supervised
release, and ordered payment of restitution of $53,911.45 and
payment of a $1300 special assessment. Davis asserts on appeal
that: (1) the district court erred in calculating total loss; (2)
the evidence was not sufficient to support the district court’s
findings beyond a reasonable doubt that Davis was in the business
of receiving and selling stolen property, that the offense involved
sophisticated means, and that the offense involved the organized
scheme to steal vehicles; (3) the district court erred in allowing
the Government to use Davis’ pretrial statements in its case-in-
chief; and (4) his sentence is invalid in light of United States v.
Booker, 543 U.S. 220 (2005). Davis also has filed a motion to
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remand for resentencing, citing Booker. For the reasons that
follow, we deny Davis’ motion for remand and affirm his conviction
and sentence.
Davis’ first contention, that the district court erred in
calculating total loss relative to the stolen vehicles, is without
merit because the district court properly made a reasonable
estimate of loss based on the fair market value of the stolen
vehicles, as reflected by the amounts paid out by the respective
insurance companies to the victims of the crimes. See U.S.
Sentencing Guidelines Manual § 2B1.1(b)(1), comments. (n.3(C),
3(C)(I)) (2004). In declining Davis’ invitation to credit him for
the proceeds obtained when those vehicles ultimately were auctioned
off after their retrieval following his arrest, the district court
did not err. Hence, the district court’s conclusion that the loss
was greater than $70,000 was reasonable and Davis’ guideline range
properly was calculated on that basis.
Davis next asserts that the evidence was insufficient to
support the district court’s determinations, beyond a reasonable
doubt, that Davis was in the business of receiving and selling
stolen property and that the offense involved sophisticated means,
as well as its ultimate four-level enhancement of Davis’ offense
level based on those determinations.* Because Davis failed to
*
He also asserts error in the district court’s finding beyond
a reasonable doubt that the offense involved the organized scheme
to steal vehicles.
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raise the sufficiency of the evidence issue in the district court,
we review the claim for plain error. United States v. Olano, 507
U.S. 725, 732 (1993); United States v. Higgs, 353 F.3d 281, 324
(4th Cir. 2003).
A defendant challenging the sufficiency of the evidence
faces a heavy burden. See United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). In reviewing a sufficiency challenge, “[t]he
verdict of [the factfinder] must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S. 60,
80 (1942). This court “ha[s] defined ‘substantial evidence,’ in
the context of a criminal action, as that evidence which ‘a
reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable
doubt.’” United States v. Newsome, 322 F.3d 328, 333 (4th Cir.
2003) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996)).
We find there was substantial evidence, when viewed in
the light most favorable to the Government, to support the district
court’s verdict and findings, which evidence included testimony
from those who purchased the stolen vehicles from Davis, the
victims whose vehicles were stolen, and an agent who interviewed
Davis following his arrest, as well as documentary and other
evidence demonstrating Davis’ use of fraudulent and fictitious
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identification and documentation relating to the vehicles, and the
interstate transportation of those vehicles and documents.
Accordingly, we find no error in the district court’s findings,
beyond a reasonable doubt, with respect to the sentencing
allegations included in the indictment, that Davis was in the
business of receiving and selling stolen property, that the offense
involved sophisticated means as it relates to the fake Vehicle
Identification Numbers and title documents, and that the scheme was
an organized scheme to sell stolen vehicles.
Davis next challenges the district court’s decision to
allow the Government to use Davis’ pretrial statements made to law
enforcement officers as part of a plea agreement into which he
ultimately did not enter. Specifically, he contends that he did
not knowingly and voluntarily waive his right to allow the
Government to introduce the statements he made during his plea
negotiations, because he did not follow through with his guilty
plea.
A district court's decision to allow the introduction of
evidence is entitled to substantial deference and will not be
reversed by this court absent a clear abuse of discretion. Sasaki
v. Class, 92 F.3d 232, 241 (4th Cir. 1996). Case-by-case inquiries
are appropriate to determine whether waiver agreements are the
product of fraud or coercion, and absent some affirmative
indication that the plea statement waiver was entered into
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unknowingly or involuntarily, the agreement to waive the
exclusionary provision of the plea-statement Rules is valid and
enforceable. United States v. Mezzanatto, 513 U.S. 196, 210
(1995).
Here, the parties stipulated that the following provision
appeared in paragraph 15 of Davis’ plea agreement, which was signed
by Davis, his attorney, and the Government attorney:
This agreement is effective when signed by the defendant,
the defendant’s attorney, and an attorney for the United
States. The defendant agrees to entry of this plea
agreement at the date and time scheduled with the Court
by the United States . . . If the defendant withdraws
from this agreement . . . violates any provision of this
agreement, then:
(c) Any prosecution that is the subject of this
agreement, may be premised on any information provided,
or statements made, by the defendant, and all such
information, statements, and leads derived therefrom may
be used against the defendant. The defendant waives any
right to claim that statements made before or after the
date of this agreement, including the statement of facts
accompanying this agreement or adopted by the defendant
and any other statements made pursuant to this or any
other agreement with the United States, should be
excluded or suppressed under Fed. R. Evid. 410, Fed. R.
Crim. P. 11(f), the Sentencing Guidelines or any other
provision of the Constitution or federal law.
(Emphasis added; citations omitted).
We find that, pursuant to the explicit terms of the
agreement, the waiver agreement became effective upon the
signatures of the parties and was not contingent on Davis’ ultimate
acceptance of the plea arrangement. Davis clearly waived any right
to claim that his statements made during plea negotiations were not
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admissible at trial, and his assertion that his waiver is
ineffective merely because he did not ultimately follow through
with his plea is without merit. Davis has not shown that the
district court’s ruling on the admissibility of his statements made
during plea negotiations was clearly erroneous.
Davis contends that the district court clearly erred in
sentencing him under a mandatory guidelines regime, in violation of
the rule announced in Booker. This contention, raised in his
briefs on appeal, also forms the basis for his pending motion to
remand for resentencing. As stipulated to by the parties, we
review for plain error any sentencing issues raised pursuant to
Booker. See United States v. Hughes, 401 F.3d 540, 546-60 (4th
Cir. 2005); United States v. White, 405 F.3d 208, 215 (4th Cir.
2005).
This court will find plain error in the district court’s
imposition of a sentence under the former mandatory guidelines
regime, even in the absence of a Sixth Amendment violation, only
where the defendant “demonstrate[s], based on the record, that the
treatment of the guidelines as mandatory caused the district court
to impose a longer sentence than it otherwise would have imposed.”
White, 405 F.3d at 224. Here, while the district court sentenced
Davis at the bottom of the sentencing range, it made no comment
regarding the mandatory nature of the guidelines, nor did it make
any comments in sentencing Davis that would indicate that it would
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have imposed a different sentence under an advisory guideline
system. Therefore, as the record does not reveal a nonspeculative
basis for concluding that the district court would have imposed a
shorter sentence had it known it possessed discretion to do so, we
find that Davis cannot demonstrate that the district court’s error
in sentencing him under a mandatory guidelines regime affected his
substantial rights such that he is entitled to resentencing. See
United States v. Olano, 507 U.S. 725, 734-35 (1993).
Accordingly, we deny Davis’ motion to remand for
resentencing, and affirm his conviction and sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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