US v. Bruce Alan Davidson, Jr., No. 10-4273 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4273 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRUCE ALAN DAVIDSON, JR., Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, Chief District Judge. (2:09-cr-00014-REM-JSK-2) Submitted: February 24, 2011 Decided: March 18, 2011 Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Deanna L. Pennington, Morgantown, West Virginia, for Appellant. Betsy C. Jividen, United States Attorney, Stephen D. Warner, Assistant United States Attorney, Elkins, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Bruce possess with Alan Davidson intent to pled guilty to more than distribute conspiracy 50 grams to of methamphetamine, 21 U.S.C. § 846 (2006), and was sentenced to a term of 235 months imprisonment. Davidson appeals his sentence, contending that the district court clearly erred by increasing his sentence for obstruction Guidelines Manual created substantial a § 3C1.1 of justice, (2009), risk of and harm environment, USSG § 2D1.1(b)(10(C)(ii). * the sentence is unreasonable. Davidson for to U.S. an Sentencing offense human life that or the He also maintains that We affirm. participated in a conspiracy that lasted several years, involved a large number of people, and produced a large quantity of methamphetamine. Davidson was initially released on bond after his arrest, but his bond was revoked after he tested positive in a field test for methamphetamine use. At the revocation hearing before a magistrate judge, Davidson testified that he had not used methamphetamine, had not admitted using methamphetamine to the probation officer or a deputy marshal on the day he was tested and the day he was * The government asserts that plain error review applies to Davidson s first two issues. However, Davidson preserved both issues for appeal by objecting to the enhancements in the district court. United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). 2 returned to custody, and did not check a box indicating that he admitted using methamphetamine on the admission form. The magistrate judge found Davidson s testimony less credible than the probation officer s testimony to the contrary. Davidson acknowledged when he subsequently entered his guilty plea that he and co-defendant Jeremy Brown both cooked methamphetamine, often at a farm owned by Brown s mother. A few days later, although his plea agreement required him to give truthful testimony, Davidson was called to testify at Brown s trial. Out conspiring ever of with seeing the presence Brown Brown to of the manufacture with jury, Davidson denied methamphetamine, denied methamphetamine or seeing a methamphetamine lab on Brown s property, and denied that he had ever known Brown to use methamphetamine or that anyone obtained it from him. At the sentencing hearing, Davidson argued that his perjured testimony at the revocation hearing should not be the basis for an obstruction of justice adjustment because subsequent guilty plea had given him a clean slate. his He also argued that he should not be held responsible for creating a hazard to human life or the environment because he had no control over what happened on Brown s property, where much of the methamphetamine was manufactured. The district court overruled both objections and imposed sentence at the bottom of 3 the advisory sentencing guideline range, finding that Davidson s arguments for a below-guideline sentence so that he could spend time with his children were at odds with his prior conduct and that a within-guideline sentence was necessary to reflect the seriousness of the offense, instill a proper respect for the law, and provide for Davidson s rehabilitation. The 235-month sentence was at the bottom of the guideline range. On appeal, Davidson argues that the court failed to make adequate findings to support the adjustment for obstruction of justice, failed to consider properly the factors relevant to the enhancement for creating a risk of harm, thus improperly calculating the guideline range, and failed to consider adequately the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010) factors. We review a sentence for procedural and substantive reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). We must first ensure that the district court did not commit any significant procedural error, such as failing to properly calculate the applicable guidelines range, failing to consider the 18 U.S.C.A. § 3553(a) explain the sentence. factors, or failing to adequately Id. An adjustment for obstruction of justice is warranted if the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the 4 instant offense of conviction[.] USSG § 3C1.1. The application notes for § 3C1.1 specifically include perjury by defendant and providing materially false information to a judge or magistrate. § 3C1.1, the USSG § 3C1.1 cmt. n.4(b), (f). Supreme Court has defined For purposes of perjury as false testimony concerning a material matter with the willful intent to provide confusion, false testimony, mistake, or rather faulty Dunnigan, 507 U.S. 87, 94 (1993). material evidence as than as memory. a result United of States v. Application Note 6 defines evidence, fact, statement, or information that, if believed, would tend to influence or affect the issue under determination. Under Dunnigan, it is preferable for a district court to address each element of the perjury in a separate and clear finding[,] 507 U.S. at 95, but it is sufficient if the district court makes a determination that encompasses all of the factual predicates for a finding of perjury. Id. Davidson contends that the district court failed to identify the statements he made at the revocation hearing that were false, whether they concerned a material matter, and whether they were willfully made. However, Davidson did not assert at sentencing that his testimony at the detention hearing was not perjured or not material or not given with the willful intent to influence the outcome of the detention hearing. 5 He thus conceded that it was all of the above. the district magistrate We conclude that it was not clear error for court to judge s base implied, its finding and of perjury undisputed, on finding the that Davidson s testimony at the revocation hearing was not credible, and the probation officer s recommendation that the testimony was material and willful. 157, 162 (4th Cir. See United States v. Terry, 916 F.2d 1990) (without defendant s affirmative showing that information in presentence report is inaccurate, district court may adopt findings without more explicit explanation). Application factors relevant offense involving Note to the the 20(A) court s to § 2D1.1 sets determination manufacture of out that, four in an methamphetamine, an enhancement for creation of a substantial risk of harm to human life or the environment is warranted. In the presentence report, the probation officer discussed these factors in detail and explained how they supported application of the enhancement in this case. that he was At the sentencing hearing, Davidson argued only not responsible for any hazard created manufacture of methamphetamine on Brown s property. contend again that no conceding substantial the point. risk The of harm was district by He did not created court the held there, that Davidson was responsible for the actions of his co-conspirators in furtherance of the conspiracy, see USSG § 1B1.3(a)(1)(B), but 6 did not make detailed findings concerning the enhancement, since none were called for under Terry. court did not clearly err in We conclude that the district applying the enhancement for creation of a substantial risk of harm. Davidson maintains that the district court s alleged errors in calculating his guideline range resulted in a sentence above the guideline range that, in his view, should have been used and, therefore, the sentence presumption of reasonableness. should not be afforded a However, we conclude that the district court did not err in calculating the guideline range. Davidson also claims that the district court failed to consider adequately the § 3553(a) sentence greater than necessary. factors, resulting This claim also fails. in a The court must place on the record an individualized assessment based on the particular facts of the case before it [which] . . . provide[s] a rationale tailored to the particular case at hand and [is] adequate to permit meaningful appellate review. United States (internal v. Carter, quotation 564 marks, F.3d 325, footnote, 330 and (4th citation Cir. 2009) omitted). This is true even when the district court sentences a defendant within the applicable guidelines range. Id. At the same time, a sentence imposed within a properly calculated guidelines reasonableness on appeal. range enjoys a presumption of United States v. Go, 517 F.3d 216, 7 218 (4th Cir. 2008); see Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding appellate presumption of reasonableness for within-guidelines sentence). Thus, an extensive explanation is not required as long as the appellate court is satisfied that [the district court] has considered the parties arguments and has a reasoned basis for decisionmaking authority. 495, 500 denied, (4th 131 Cir.) S. 165 [its] own legal United States v. Engle, 592 F.3d (quoting Ct. exercising Rita, (2010) 551 U.S. 356), cert. quotation (internal at marks omitted). Although inadequacy of the Davidson did not district court s object ruling to at the alleged sentencing, he preserved the issue for appeal simply by requesting a belowguideline sentence. Lynn, 592 F.3d at 577-78. We are satisfied that the court adequately considered the § 3553(a) factors, made an individualized assessment of the relevant facts, and stated its reasons for imposing a within-guideline sentence in a manner sufficient to permit appellate review. Thus, the district court did not commit procedural error and we exercise our discretion to apply a presumption of reasonableness to Davidson s within-guideline sentence. United States v. Wright, 594 F.3d 259, 268 (4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S. Ct. 507 (2010) (internal quotation marks omitted). 8 We district facts court. and materials therefore legal before We affirm dispense the with sentence oral argument contentions are adequately the and argument court imposed by the because the presented would not in the aid the decisional process. AFFIRMED 9
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