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United States v. Davis

United States Court of Appeals, Fourth Circuit

March 19, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOSEPH HOWARD DAVIS, Defendant-Appellant.

          Argued: January 31, 2019

          Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, Senior District Judge. (5:16-cr-00065-RLV-DCK-1)

         ARGUED:

          Eric Jason Foster, LAW OFFICE OF RICK FOSTER, Asheville, North Carolina, for Appellant.

          Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

         ON BRIEF:

          R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

          Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

          NIEMEYER, CIRCUIT JUDGE:

         Challenging his conviction for distribution of over 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), Joseph Davis contends that the district court erred (1) in admitting an out-of-court statement that a confidential informant made about having purchased drugs from Davis prior to the relevant investigation; (2) in failing to require adequate authentication of an officer's photographs of the informant's cellphone screen as she purportedly texted Davis in preparation for a controlled buy; and (3) in admitting a recording of a telephone conversation between the informant and Davis, authenticated by an officer's identification of Davis's voice. Davis also contends that the district court erred in failing to explain its use of coconspirator testimony to find drug quantities for sentencing purposes after the jury had acquitted Davis on a charged conspiracy count.

         For the reasons that follow, we conclude that the district court did not abuse its discretion in its admission of the challenged evidence. We also conclude that Davis's sentence was not procedurally unreasonable. The district court adequately explained its decision to credit the testimony of Davis's coconspirators about drug quantities despite the acquittal on the conspiracy count. Accordingly, we affirm.

         I

         Davis was indicted in four counts with methamphetamine trafficking and related violations in Charlotte, North Carolina, during the period from 2014 to 2016. Count I alleged that Davis participated in a conspiracy to distribute 50 grams or more of methamphetamine and 500 grams or more of a substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Count II charged Davis with possession of a firearm in furtherance of the conspiracy, in violation of 18 U.S.C. § 924(c). Count III alleged that Davis distributed 50 grams or more of methamphetamine on or about October 12, 2016, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). And Count IV charged Davis with possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).

         At trial, the government offered evidence of an alleged conspiracy in which Reggie Shaw supplied Davis with substantial amounts of methamphetamine to sell to Roderick Roberts and Tangie Carroll. It also offered evidence of a controlled buy on or about October 12, 2016, in which Davis sold a confidential informant (hereafter "the Informant"), 54 grams of pure methamphetamine. That transaction took place at a mailbox cluster for the apartment complex where Davis lived and was witnessed by an undercover officer. Finally, the government offered evidence of Davis's illegal possession of firearms.

         The jury found Davis not guilty on Counts I and II, which charged Davis with conspiracy to traffic in methamphetamine and possession of a firearm in furtherance of that conspiracy, but found him guilty of distributing 50 grams or more of methamphetamine on or about October 12, 2016, and possession of a firearm by a felon.

         The district court imposed a downward-variance sentence of 260 months' imprisonment, after calculating an advisory Guidelines range of 360 months' to life imprisonment. In determining the offense level, the court affirmed the presentence report's determination that Davis was responsible for 4.5 kilograms or more of methamphetamine based on the testimony given at trial by Davis's alleged coconspirators, Shaw and Carroll. Based on the jury's acquittal on the conspiracy count, Davis objected to the district court's use of the coconspirators' testimony to determine drug quantities. The district court overruled the objection, finding that the alleged coconspirators testified "convincingly" as to drug amounts.

         Davis filed this appeal challenging his conviction, based on the allegedly erroneous evidentiary determinations, and his sentence, based on the court's purported failure to explain why it relied on acquitted conduct.

         II

         Challenging his conviction, Davis contends that the district court erred in admitting three items of evidence during trial: (1) the testimony of Officer Jeff Jenkins explaining that he enlisted the Informant to participate in a controlled buy because she told him that she had purchased methamphetamine from Davis; (2) photographs that Officer Jenkins took of the Informant's cellphone screen as she was purportedly texting with Davis; and (3) a recording of a telephone call between the Informant and a man whom Officer Jenkins identified as ...


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