UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4993
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEMETRIUS DARRELL DAVIS, a/k/a Meatman,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.
(CR-97-248-BEL)
Submitted: June 30, 2006 Decided: July 26, 2006
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Christine Manuelian, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before the court after a remand to the
district court for resentencing in light of United States v.
Booker, 543 U.S. 220 (2005), and United States v. Hughes, 401 F.3d
540, 546 (4th Cir. 2005). Demetrius Davis pled guilty, without the
benefit of a plea agreement, to all counts of an indictment
charging him with conspiring to distribute and to possess with
intent to distribute “a quantity” of cocaine and crack, and three
substantive counts of distributing a total of fifty-five grams of
crack cocaine. See 21 U.S.C. §§ 841(a)(1), 846 (2000).
At his original sentencing, the district court found that
Davis was responsible for 1.5 kilograms of cocaine base, resulting
in a base offense level of 38. U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2000). With an additional two-level enhancement for
possession of a firearm, less a three-level reduction for
acceptance of responsibility, Davis’ final total offense level was
37, with a corresponding guidelines range of 210 to 262 months.
The district court imposed a 210-month sentence. On appeal, this
court affirmed Davis’ conviction but vacated his sentence and
remanded for resentencing consistent with Booker and Hughes. See
United States v. Davis, No. 04-4084 (4th Cir. May 26, 2005)
(unpublished).
On remand, the district court again determined that Davis
was responsible for 1.5 kilograms of cocaine base, resulting in a
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base offense level of 38. The court also imposed the same increase
for the firearm and gave a three-level reduction for acceptance of
responsibility, resulting in a total offense level of 37, with a
corresponding guidelines range of 210 to 262 months. After taking
into account the additional factors enumerated in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005), particularly Davis’ academic
accomplishments while incarcerated, the court sentenced Davis below
the advisory guidelines range to 188 months of imprisonment. He
has noted a timely appeal.
Davis contends, first, that the district court erred in
enhancing his sentence for possession of a dangerous weapon in
connection with a drug offense, pursuant to USSG § 2D1.1(b)(1),
because there was no evidence that he possessed a firearm in
connection with the charges to which he pled guilty. The district
court’s enhancement under § 2D1.1(b)(1) is reviewed for clear
error. United States v. McAllister, 272 F.3d 228, 234 (4th Cir.
2001).
Under the guidelines, a defendant receives a two-level
increase to his base offense level under USSG § 2D1.1(b)(1) if a
dangerous weapon was possessed during the offense. This
“adjustment should be applied if the weapon was present, unless it
is clearly improbable that the weapon was connected with the
offense.” USSG § 2D1.1(b)(1) cmt. n.3. The government need not
establish a perfect connection between the possession of the
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firearm and the commission of the drug offense before the
enhancement may be made. See McAllister, 272 F.3d at 234 (“In
order to prove that a weapon was present, the Government need show
only that the weapon was possessed during the relevant illegal drug
activity.”). Evidence of firearms in proximity to illegal drugs
can support a conclusion that the firearms were possessed during
the commission of the drug offense. See United States v. Harris,
128 F.3d 850, 852 (4th Cir. 1997) (noting that the test requires
nothing more than that the guns be located in the same place where
drugs are stored or distributed). Moreover, the enhancement does
not “require[] proof of precisely concurrent acts, for example, gun
in hand while in the act of storing drugs, drugs in hand while in
the act of retrieving a gun.” Id. (internal quotation marks
omitted). We find that, based on the evidence before the district
court, it was not clearly improbable that the weapons at issue were
connected with the offenses to which Davis pled guilty. Therefore,
the district court did not clearly err by applying the
§ 2D1.1(b)(1) enhancement.
Next, Davis asserts that retroactive application of the
Booker decision results in an Ex Post Facto violation. However,
Davis’ argument is foreclosed by this court’s decision in United
States v. Davenport, 445 F.3d 366 (4th Cir. 2006) (noting that “Ex
Post Facto challenges to the retroactive application of Booker have
been universally rejected by the federal courts”).
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Finally, Davis argues that the imposition of a sentence
“under a mandatory minimum and consecutive statute, where the
statute does not provide any judicial exception or ‘safety valve’
to this mandatory aspect, constituted an unreasonable and
unconstitutional sentence, as it denied the trial court the ability
to impose a sentence with regard to the important constitutional
considerations set forth in § 3553.”
After the Supreme Court’s decision in Booker, a
sentencing court is no longer bound by the range prescribed by the
Sentencing Guidelines. Hughes, 401 F.3d at 546. In determining a
sentence post-Booker, however, sentencing courts are still required
to calculate and consider the guideline range prescribed thereby as
well as the factors set forth in 18 U.S.C.A. § 3553(a). United
States v. Green, 436 F.3d 449, 455-56 (4th Cir. 2006). As stated
in Hughes, this court will affirm a post-Booker sentence if it is
both reasonable and within the statutorily prescribed range. 401
F.3d at 546-47. Further, this court has stated that “while we
believe that the appropriate circumstances for imposing a sentence
outside the guideline range will depend on the facts of individual
cases, we have no reason to doubt that most sentences will continue
to fall within the applicable guideline range.” United States v.
White, 405 F.3d 208, 219 (4th Cir.), cert. denied, 126 S. Ct. 668
(2005). The rule announced in Booker does not apply to statutory
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mandatory minimum sentences. See United States v. Groce, 398 F.3d
679, 682 n.2 (4th Cir. 2005).
Here, the district court appropriately treated the
guidelines as advisory and properly calculated and considered the
guidelines range as well as the relevant factors under § 3553(a).
The court imposed a sentence below the statutory maximum and below
the guidelines range after carefully reviewing the § 3553(a)
factors and stated its reasons for sentencing Davis below the
guidelines range. See Hughes, 401 F.3d at 547. We therefore find
that Davis’ sentence was reasonable.
Accordingly, we affirm. 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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