UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4841
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY JEROME DAVIS, JR., a/k/a Pokey,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00021-NCT-1)
Submitted: September 22, 2011 Decided: October 11, 2011
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Adam H. Charnes, Richard D. Dietz, Bradley A. Roehrenbeck,
KILPATRICK STOCKTON, LLP, Winston-Salem, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Jerome Davis, Jr., was found guilty after a jury
trial of possession with intent to distribute 11.4 grams of
crack cocaine. He received a 292-month sentence. On appeal,
Davis argues, as he did below, that the district court should
have granted a downward variance based on the disparate
treatment under the Sentencing Guidelines of crack and powder
cocaine, that he should not have been designated as a career
offender, and that his sentence is greater than necessary to
comply with 18 U.S.C. § 3553(a) (2006). We affirm Davis’s
conviction. However, in light of this court’s decision in
United States v. Simmons, 649 F.3d 237, 2011 WL 3607266 (4th
Cir. Aug. 17, 2011) (en banc), 1 we vacate the sentence imposed
and remand for resentencing.
This court reviews a sentence for reasonableness under
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). This review requires appellate
consideration of both the procedural and substantive
reasonableness of a sentence. Id. Procedural reasonableness is
determined by reviewing whether the district court properly
calculated the defendant’s advisory Guidelines range and then
considered the 18 U.S.C. § 3553(a) factors, analyzed any
1
This case was placed in abeyance for Simmons.
2
arguments presented by the parties, and sufficiently explained
the selected sentence. Id. at 49-51. “Regardless of whether
the district court imposes an above, below, or within-Guidelines
sentence, it must place on the record an ‘individualized
assessment’ based on the particular facts of the case before
it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009). Finally, this court reviews the substantive
reasonableness of the sentence, “examining the totality of the
circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied
the standards set forth in § 3553(a).” United States v.
Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010), cert.
denied, 131 S. Ct. 3078 (2011).
Davis challenges the district court’s designation of
him as a career offender on the ground that the court erred in
finding that one of his prior North Carolina convictions for
possession with intent to sell and deliver cocaine counted as a
conviction with a sentence greater than one year for career
offender purposes. Section 4B1.1 of the Sentencing Guidelines
defines a career offender as a defendant who (1) was at least
eighteen years old when he committed the instant offense, (2) is
convicted of a felony “that is either a crime of violence or a
controlled substance offense,” and (3) “has at least two prior
felony convictions of either a crime of violence or a controlled
3
substance offense.” USSG § 4B1.1(a). This court reviews
de novo the district court’s classification of Davis as a career
offender and reviews for clear error its factual findings.
United States v. Farrior, 535 F.3d 210, 223 (4th Cir. 2008).
Davis claims that his 1998 North Carolina conviction
of possession with the intent to sell or deliver cocaine did not
constitute a predicate felony because he was sentenced to a
maximum of twelve months. 2 When Davis raised this argument in
the district court, it was foreclosed by this court’s decision
in United States v. Harp, 406 F.3d 242 (4th Cir. 2005).
Subsequently, however, this court overruled Harp with the en
banc decision in Simmons, in which this court determined that
the evaluation of whether a particular offense was a felony must
focus on the maximum sentence for which a particular defendant
was eligible, in light of his criminal history, rather than the
maximum sentence that could be imposed on a defendant with the
worst possible criminal record. Simmons, 2011 WL 3607266 at *6.
In light of the decision in Simmons, we conclude that Davis’s
argument has merit. We therefore vacate the district court’s
2
Davis’s brief refers to a 1999 conviction; however, the
Pre-Sentence Report and district court relied upon 1998 and 2000
convictions. We presume that Davis’s argument is based on his
1998 sentence, for which he received a 10-12 month sentence.
4
sentence and remand the case to the district court for
resentencing. 3
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 IN PART,
VACATED IN PART,
AND REMANDED
3
Because we vacate the sentence in its entirety, we do not
express an opinion on whether the district court committed a
procedural error in declining to grant a downward variance based
on the crack to powder cocaine sentencing ratio, nor whether the
original sentence was reasonable.
5