Someone shot Eric Davis. He wasn’t hurt badly, but he was mad.
The next day, someone told him that the man who shot him was near a high school. Mr. Davis went to the high school. He saw Octavious Wilkins, and took Mr. Wilkins as the man who shot him.
Mr. Davis, and friends, approached Mr. Wilkins. They had guns drawn.
Two things happened as a result. Mr. Wilkins was shot, and Mr. Davis wound up with Mr. Wilkins’ cell phone.
What isn’t clear is how Mr. Davis came to possess Mr. Wilkins’ phone.
Maybe Mr. Davis threatened Mr. Wilkins with a gun, and demanded his phone, then shot him as he ran away later.
Maybe Mr. Davis threatened Mr. Wilkins, who ran and was shot, then dropped his phone as a result of being shot.
Regardless of which happened, Mr. Davis was charged in state court in North Carolina with common law robbery. He was charged in the United States District Court for the Eastern District of North Carolina with being a felon in possession of ammunition.
His state case moved faster than his federal case, as so often happens. He entered a no contest plea to the robbery charge – he didn’t admit that he did it, just that he wouldn’t contest it.
He was sentenced to between 14 and 17 months in prison on the state robbery charge.
He also entered a plea to the federal charge. Because possessing ammunition is clearly more than five times worse than robbing someone, Mr. Davis’s sentence in federal court was more than five times longer – 108 months.
In sentencing him, the district court had to decide if his guidelines range would be raised because he used the gun in connection with a robbery.
If he used the gun in connection with a robbery, his range would be 120 months (or, more accurately, it should have been 121-151 months, but the statutory mandatory minimum of ten years means that it is effectively 120 months).
If he used the gun in connection with, say, assault – shooting someone else without necessarily intending to take their stuff – then his range would be 46 to 57 months.
So, if Mr. Davis pointed a gun at Mr. Wilkins, demanded his phone, and took it – then it looks like that’s clearly robbery.
If Mr. Davis shot Mr. Williams then picked up his phone when he dropped it, that looks a little more like assault.
The district court tried to avoid this factual question. Instead, it focused on the fact that Mr. Davis was convicted of robbery in state court. The district court was uninterested in the detail that Mr. Davis’s conviction was the result of a no contest plea.
The Fourth Circuit, in United States v. Davis, held that the district court should have been more interested in the basis for the plea in state court, saying
we hold that Davis’s ‘no contest’ plea to common law robbery could not alone provide the necessary evidentiary basis to support application of the robbery cross-reference. What is necessary is factfinding regarding Davis’s conduct. If Davis is to be sentenced as if he committed, not just the passive, status offense of unlawful possession of a single round of ammunition, but a robbery, the Sentencing Reform Act requires that the sentencing court make the findings necessary to justify such a result.
Ok, fair enough – the district court was wrong to rely on the fact of a conviction based on a no contest plea.
On remand, the district court will have to look at the evidence of what happened – when did Mr. Davis take Mr. Wilkins’ phone?
It may be that whatever Mr. Davis did to get possession of Mr. Wilkins’ phone is robbery in North Carolina. After canvassing some of the cases, the court of appeals noted that:
we discover that North Carolina law is predictably nuanced in situations where property is taken during or following a violent altercation that is motivated by reasons entirely unconnected to the purloined property itself.
However, resolving this question, the Fourth Circuit determined, was not its job. Rather, the court of appeals observed that
the parties seek to draw us into a nice dispute over the proper interpretation of the North Carolina law of common law robbery. But that is a dispute to be properly resolved by the district court in the first instance, which has not happened here. Even more fundamentally in our judgment, the correct application of the guidelines in this case hinges on factual determinations, which are also for the district court to make.
The case was, therefore, remanded for resentencing.
Funny, though, that the court that sentenced Mr. Davis for the conduct at issue – the North Carolina state court – gave him a sentence so much lower than whichever sentence he winds up with in federal court.