United States v. Davenport

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 05-4304

DONALD DAVENPORT,

Defendant-Appellant.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William D. Quarles, Jr., District Judge.

(CR-04-453-WDQ)

Argued: January 31, 2006

Decided: April 21, 2006

Before WILKINS, Chief Judge, and MICHAEL and

TRAXLER, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge Wilkins

wrote the opinion, in which Judge Michael and Judge Traxler joined.

COUNSEL

ARGUED: Sean Paul Vitrano, ZUCKERMAN SPAEDER, L.L.P.,

Baltimore, Maryland, for Appellant. Andrew George Warrens Nor-

man, Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON

BRIEF: Gregg L. Bernstein, ZUCKERMAN SPAEDER, L.L.P., Bal-

timore, Maryland, for Appellant. Rod J. Rosenstein, United States

Attorney, Baltimore, Maryland, for Appellee.

2 UNITED STATES v. DAVENPORT

OPINION

WILKINS, Chief Judge:

Donald Davenport appeals, as a violation of the Ex Post Facto

Clause and as unreasonable, the ten-year sentence imposed by the dis-

trict court following Davenport’s guilty plea to fraudulent use of an

access device, see 18 U.S.C.A. § 1029(a)(5) (West 2000). He also

challenges, as plainly erroneous, the restitution order entered by the

district court. For the reasons set forth below, we vacate the sentence

and restitution order and remand for further proceedings.

I.

On May 17, 2004, Norma Brown reported to police that her wallet

had been stolen by a man who jostled her as she boarded a shuttle bus

at Baltimore-Washington International Airport. Shortly thereafter, one

of Brown’s credit cards was used at a store in the airport. Investiga-

tion of this purchase led to the arrest of Davenport, Anthony Dillon,

and two others. Davenport subsequently pleaded guilty pursuant to a

plea agreement.

The Probation Office filed a presentence report (PSR) that deter-

mined that Davenport’s base offense level was 6, see United States

Sentencing Guidelines Manual § 2B1.1(a)(2) (2004). The PSR then

recommended 2-level enhancements for the amount of loss, see

U.S.S.G. § 2B1.1(b)(1)(B), the number of victims, see U.S.S.G.

§ 2B1.1(b)(2)(A), theft from another person, see U.S.S.G.

§ 2B1.1(b)(3), and use of sophisticated means, see U.S.S.G.

§ 2B1.1(b)(9)(C). After subtracting two levels for acceptance of

responsibility, see U.S.S.G. § 3E1.1(a), the PSR recommended an

adjusted offense level of 12. Davenport had 26 criminal history

points, placing him in Criminal History Category VI. The resulting

advisory guideline range was 30-37 months.

In a letter submitted to the district court prior to sentencing, coun-

sel for Davenport urged the district court to impose a sentence of only

24 months, arguing that such a sentence was justified by Davenport’s

cooperation with the Government and the factors set forth in 18

UNITED STATES v. DAVENPORT 3

U.S.C.A. § 3553(a) (West 2000 & Supp. 2005). Counsel noted Dav-

enport’s "sincere remorse and shame for his conduct, which to a large

extent appears to have been motivated by pressure from Mr. Daven-

port’s childhood friend and accomplice, Anthony Dillon." J.A. 69.

The Government contested this assertion at sentencing, arguing that

Mr. Davenport was heading . . . a nationwide pickpocket

ring that would travel from event to event to event. Whether

it was [the] Preakness [Stakes, the event Brown had

attended,] or the Super Bowl or whathaveyou and whether

it be in the airports or at the events themselves, they would

take pocketbooks, they would take wallets. They had all

these devices to make I.D.s . . . . I just finished a two-month

trial of I.D. theft and I can tell you it essentially ruins peo-

ple’s lives. It certainly ruins their credit . . . .

....

Mr. Davenport was adamant in coaching Mr. Dillon . . .

about not cooperating and don’t tell the Government this,

don’t tell them that. As a matter of fact, . . . they had to

move Mr. Davenport to a different facility because of that,

separated from Mr. Dillon. He is in fact the leader. We’ve

had proffers from at least three of the four defendants who

have told us the entire story. . . . Mr. Davenport was in fact

the ring leader and the organizer of this group. As far as . . .

the nature and the circumstances of the crime, although to

label it pickpocketing seems minor, this was an extensive

ring that involved fences, that involved vans that were set up

at these events that would take the I.D.s and immediately go

in and set up new I.D.s and false names and false identifica-

tions for other individuals as well.

Id. at 38-39. The Government concluded by recommending a sen-

tence within the advisory guideline range, as was its obligation under

the plea agreement.

The district court sentenced Davenport to ten years imprisonment,

which it incorrectly believed to be the statutory maximum.1 In impos-

ing this sentence, the district court made the following comments:

1

The PSR incorrectly stated that the statutory maximum for Daven-

port’s offense was ten years. In fact, the statutory maximum is 15 years.

See 18 U.S.C.A. § 1029(c)(1)(A)(ii) (West Supp. 2005).

4 UNITED STATES v. DAVENPORT

[T]he presentence report shows that you have stolen a vari-

ety of things in a variety of places and you’ve also received

a variety of breaks from a variety of judges. Listening to you

this morning, I hear a less than vivid insight into your con-

duct and the reasons for that conduct. Understanding the

guidelines to be advisory only now, this is a case where had

the guidelines been binding, I would have departed upward

above the guidelines. Understanding that the purposes of

sentencing in this case which I view to be most important

are to reflect the seriousness of the offense, I think a sen-

tence that your lawyers have recommended not only would

not show the seriousness of the offense, it would certainly

not promote respect for the law. I think the characterization

of you as essentially engaged in a national roving band of

thieves is an appropriate one. Accordingly, I [sentence you]

to serve a term of imprisonment of ten years . . . . The pur-

pose of that sentence is . . . to provide deterren[ce]. I do

believe that . . . you received a variety of breaks from a vari-

ety of judges in your past. None of that has had any thera-

peutic effect on you and as I listened . . . this morning to

your self-assessment, I don’t hear from you any awareness

of the basis for your conduct or any serious commitment to

changing that conduct.

Id. at 48-49. The district court also required Davenport to pay restitu-

tion.

II.

A.

Davenport first challenges his sentence as a violation of the Ex

Post Facto Clause. See U.S. Const. art. I, § 9, cl. 3; see also id. art.

I, § 10, cl. 1 (prohibiting states from enacting ex post facto laws).

This argument is without merit.

The Ex Post Facto Clause prohibits, inter alia, the enactment of

"any law which imposes a punishment for an act which was not pun-

ishable at the time it was committed; or imposes additional punish-

ment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28

UNITED STATES v. DAVENPORT 5

(1981) (internal quotation marks omitted). Accordingly, a law violates

the Ex Post Facto Clause when it is retrospective— i.e., when it

applies to events predating its enactment—and it disadvantages those

to whom it applies. See Lynce v. Mathis, 519 U.S. 433, 441 (1997).

The central concern of the ex post facto prohibition is "the lack of fair

notice and governmental restraint when the legislature increases pun-

ishment beyond what was prescribed when the crime was consum-

mated." Weaver, 450 U.S. at 30. The clause seeks to ensure "that

legislative Acts give fair warning of their effect and permit individu-

als to rely on their meaning until explicitly changed," and it guards

against "arbitrary and potentially vindictive legislation." Id. at 28-29.

Ex Post Facto challenges to the retroactive application of Booker

have been universally rejected by the federal courts. See, e.g., United

States v. Austin, 432 F.3d 598, 599-600 (5th Cir. 2005) (per curiam);

United States v. Vaughn, 430 F.3d 518, 524-25 (2d Cir. 2005), peti-

tion for cert. filed, No. 05-9499 (U.S. Mar. 1, 2006); United States v.

Perez-Ruiz, 421 F.3d 11, 15 (1st Cir. 2005), cert. denied, 126 S. Ct.

1092 (2006); United States v. Dupas, 419 F.3d 916, 919-21 (9th Cir.

2005), cert. denied, 126 S. Ct. 1484 (2006); United States v. Jamison,

416 F.3d 538, 539 (7th Cir. 2005). We, likewise, reject Davenport’s

claim. When he committed the crime, Davenport was on notice that

the maximum statutory penalty was 15 years; this is all that is

required to satisfy the concerns of fair notice embodied by the Ex Post

Facto Clause. See Austin, 432 F.3d at 599-600.

B.

Davenport next challenges his ten-year sentence as unreasonable.

See United States v. Booker, 543 U.S. 220, 260-62 (2005); United

States v. Green, 436 F.3d 449, 456-57 (4th Cir. 2006). For the reasons

set forth below, we vacate and remand for resentencing.

1.

This court has previously described the necessary procedure for

imposing sentence under the now-advisory sentencing guidelines:

First, the court must correctly determine, after making

appropriate findings of fact, the applicable guideline range.

6 UNITED STATES v. DAVENPORT

Next, the court must determine whether a sentence within

that range serves the factors set forth in § 3553(a) and, if

not, select a sentence within statutory limits that does serve

those factors. In doing so, the district court should first look

to whether a departure is appropriate based on the Guide-

lines Manual or relevant case law. . . . If an appropriate basis

for departure exists, the district court may depart. If the

resulting departure range still does not serve the factors set

forth in § 3553(a), the court may then elect to impose a non-

guideline sentence (a "variance sentence"). The district court

must articulate the reasons for the sentence imposed, partic-

ularly explaining any departure or variance from the guide-

line range. The explanation of a variance sentence must be

tied to the factors set forth in § 3553(a) and must be accom-

panied by findings of fact as necessary. The district court

need not discuss each factor set forth in § 3553(a) in check-

list fashion; it is enough to calculate the range accurately

and explain why (if the sentence lies outside it) this defen-

dant deserves more or less.

United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006) (cita-

tions, internal quotation marks, & alterations omitted); see United

States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006) ("[A] dis-

trict court’s job is not to impose a ‘reasonable’ sentence. Rather, a

district court’s mandate is to impose a sentence sufficient, but not

greater than necessary, to comply with the purposes of section

3553(a)(2). Reasonableness is the appellate standard of review in

judging whether a district court has accomplished its task." (internal

quotation marks omitted)).

We review the sentence for reasonableness, considering "the extent

to which the sentence . . . comports with the various, and sometimes

competing, goals of § 3553(a)." Moreland, 437 F.3d at 433. Underly-

ing legal and factual determinations are reviewed, respectively, de

novo and for clear error. See id. When we review a sentence outside

the advisory guideline range—whether as a product of a departure or

a variance—we consider both whether the district court acted reason-

ably with respect to its decision to impose such a sentence and with

respect to the extent of the divergence from the guideline range. See

UNITED STATES v. DAVENPORT 7

id. at 433-34 (variance sentence); United States v. Hairston, 96 F.3d

102, 106 (4th Cir. 1996) (departure sentence).

2.

Davenport asserts that we must vacate his sentence because he

received no notice that the district court was contemplating a sentence

above the advisory guideline range. We agree that Davenport was

entitled to notice. Rule 32 of the Federal Rules of Criminal Procedure

contains various procedural requirements intended to ensure the accu-

racy of the information used at sentencing. See United States v.

Nappi, 243 F.3d 758, 763 & n.4 (3d Cir. 2001); see also Townsend

v. Burke, 334 U.S. 736, 741 (1948) (holding that sentence based on

materially false information violates the Due Process Clause). One of

these requirements is found in Rule 32(h), which requires the district

court to provide "reasonable notice" of an intent to depart on a ground

not previously identified by the PSR or one of the parties and to spec-

ify the ground of departure. Fed. R. Crim. P. 32(h). See generally

Burns v. United States, 501 U.S. 129, 135 (1991) (holding, prior to

adoption of Rule 32(h), that the district court must notify the parties

before departing "on its own initiative and contrary to the expecta-

tions of both the defendant and the Government"). The need for such

notice is as clear now as before Booker. There is "essentially no limit

on the number of potential factors that may warrant a departure" or

a variance, and neither the defendant nor the Government "is in a

position to guess when or on what grounds a district court might

depart" or vary from the guidelines. Burns, 501 U.S. at 136-37. We

therefore conclude that notice of an intent to depart or vary from the

guidelines remains a critical part of sentencing post-Booker. See

United States v. Hawk Wing, 433 F.3d 622, 626-27 (8th Cir. 2006).

It is less clear to us that the failure to provide notice prejudiced

Davenport. It is true that the plea agreement included the Govern-

ment’s pledge to "recommend a sentence within the guideline range,"

J.A. 30, and that during the plea hearing the district court informed

Davenport that it was "not likely" to impose a sentence outside the

guideline range, id. at 16. However, Davenport’s presentencing letter

to the district court specifically addressed the application of § 3553(a)

to the facts of the case, indicating that Davenport was amply prepared

to comment on any identified basis for departure or variance, as

8 UNITED STATES v. DAVENPORT

indeed he did at sentencing. Ultimately, we need not decide whether

the notice error was harmless because Davenport is entitled to vacatur

of his sentence on the independent basis that the sentence imposed

was unreasonable.

3.

The district court reasonably concluded that a sentence above the

advisory guideline range was warranted. Davenport was assessed 26

criminal history points, double the number needed to place him in the

highest criminal history category. Cf. U.S.S.G. § 4A1.3(a)(1) (allow-

ing an upward departure when "reliable information indicates that the

defendant’s criminal history category substantially under-represents

the seriousness of the defendant’s criminal history"). During proffer

sessions, Davenport acknowledged that he was involved with seven

other individuals in a group that traveled to sporting events for the

purpose of stealing and using credit cards, indicating (consistent with

the Government’s assertions) that Davenport’s culpability was greater

than he admitted pursuant to the plea agreement. Additionally, the

district court appropriately identified deterrence as one of the factors

relevant to sentencing, see 18 U.S.C.A. § 3553(a)(2)(B), and correctly

reasoned that a sentence above the advisory guideline range was nec-

essary to reflect the seriousness of the offense and to promote respect

for the law, see id. § 3553(a)(2)(A). All of these considerations sup-

port the decision of the district court to impose a sentence above the

advisory guideline range.

We conclude, however, that the length of the sentence was unreason-

able.2 The sentence imposed by the district court—120 months

imprisonment—is more than three times the top of the advisory

guideline range. So great a divergence requires "compelling . . . rea-

sons," Moreland, 437 F.3d at 434, that simply do not appear on the

present record. Absent the Government’s assertion that Davenport

was the ringleader of a nationwide pickpocketing ring—which was

made without supporting evidence and disputed by Davenport—the

2

The district court also did not consider departing from the guideline

range before imposing a variance sentence, as Moreland requires. We do

not fault the district court for this, however, because Moreland had not

been decided when the court sentenced Davenport.

UNITED STATES v. DAVENPORT 9

district court knew only that Davenport (a) had been involved in pick-

pocketing and credit card theft in Baltimore during the weekend of

May 14-17, 2004, (b) had identified seven other individuals with

whom he had been involved in similar activities, and (c) possessed a

substantial history of similar conduct.3 These factors simply do not

justify a sentence so far above the top of the advisory guideline range.

Additionally, the explanation provided by the district court was lack-

ing in that the court "did not explain how [the] variance sentence bet-

ter served the competing interests of § 3553(a) than [a] guidelines

sentence would." United States v. Hampton, 2006 WL 724811, at *3

(4th Cir. Mar. 23, 2006).

We therefore vacate the sentence imposed by the district court and

remand for resentencing. On remand, the district court should first

consider an upward departure pursuant to the guidelines, and should

impose a variance beyond any such departure only to the extent nec-

essary to satisfy the statutory mandate of 18 U.S.C.A. § 3553(a).

Moreover, to the extent the district court intends to rely on the Gov-

ernment’s assertions regarding the scope of Davenport’s criminal

activities and his leadership role in the enterprise, the parties should

be given an opportunity to present evidence to the court if the facts

are disputed. See U.S.S.G. § 6A1.3(a), p.s. ("When any factor impor-

tant to the sentencing determination is reasonably in dispute, the par-

ties shall be given an adequate opportunity to present information to

the court regarding that factor."); United States v. Cropp, 127 F.3d

354, 362 (4th Cir. 1997) (recognizing "Due Process right to present

evidence relevant to sentencing").

III.

We next consider Davenport’s challenge to the restitution order

entered by the district court. Prior to sentencing, the Government sub-

mitted a list of victims for purposes of restitution. The list included

five financial institutions that suffered losses from fraudulent charges

on stolen credit cards. The list also included four individuals who

alleged losses arising from the theft of personal possessions. The total

3

The PSR did not recommend an increase in Davenport’s offense level

for being an organizer or leader of criminal activity. See U.S.S.G.

§ 3B1.1.

10 UNITED STATES v. DAVENPORT

loss reported was $8,738.76. The PSR contained no findings concern-

ing restitution; it did note, however, that Davenport had no reported

assets and thus could not pay a fine. At sentencing, the district court

ordered Davenport to make restitution in the full amount set forth on

the Government’s list, but made no findings regarding restitution.

Although the Mandatory Victims Restitution Act of 1996

(MVRA), see 18 U.S.C.A. § 3663A(a)(1), (c)(1)(A)(ii) (West 2000 &

Supp. 2005), required the district court to order restitution, Davenport

maintains that the court exceeded its authority under the MVRA by

ordering restitution not statutorily authorized. See United States v.

Bok, 156 F.3d 157, 166 (2d Cir. 1998) (holding that restitution is

proper only when it is statutorily authorized). Because Davenport

failed to object to the order at sentencing, our review is for plain

error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.

725, 731-32 (1993). To establish plain error, Davenport must show

that an error occurred, that the error was plain, and that the error

affected his substantial rights. See Olano, 507 U.S. at 732. Even if

Davenport makes this three-part showing, correction of the error

remains within our discretion, which we "should not exercise . . .

unless the error ‘seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.’" Id. (quoting United States v.

Young, 470 U.S. 1, 15 (1985)) (second alteration in original). The

Government concedes that the restitution order is plainly erroneous,

and we agree.

We first conclude that the district court failed to make factual find-

ings sufficient to support the restitution order. The MVRA requires

the district court to consider and make findings with respect to "the

financial resources and other assets of the defendant," his "projected

earnings and other income," and his "financial obligations." 18

U.S.C.A. § 3664(f)(2) (West 2000); see 18 U.S.C.A. § 3663A(d)

(West 2000) ("An order of restitution under this section shall be

issued and enforced in accordance with section 3664."). The district

court was also required to "make a factual finding keying the statutory

factors to the type and manner of restitution ordered; it must find that

the manner of restitution ordered is feasible." United States v.

Dawkins, 202 F.3d 711, 716 (4th Cir. 2000). Except perhaps for Dav-

enport’s lack of resources (mentioned in the PSR), the district court

made none of the required findings. The obligation to make these

UNITED STATES v. DAVENPORT 11

findings was clearly established at the time of Davenport’s sentenc-

ing, and thus the district court plainly erred in failing to make them.

Next, we conclude that the district court plainly erred in ordering

restitution to individuals who are not victims of the offense of convic-

tion. The MVRA allows restitution only for (1) those who are "di-

rectly and proximately harmed as a result of the commission of an

offense for which restitution may be ordered" and (2) "in the case of

an offense that involves as an element a scheme, conspiracy, or pat-

tern of criminal activity, any person directly harmed by the defen-

dant’s criminal conduct in the course of the scheme, conspiracy, or

pattern." 18 U.S.C.A. § 3663A(a)(2) (West 2000). Davenport pleaded

guilty to fraudulent use of an access device, in violation of 18

U.S.C.A. § 1029(a)(5). The elements of this offense are: (1) an intent

to defraud, (2) effecting transactions with one or more access devices

issued to another person, (3) to receive payment(s) or thing(s) of

value, (4) with a total value of $1,000 or more in a one-year period.

See 18 U.S.C.A. § 1029(a)(5). Because Davenport’s offense does not

"involve[ ] as an element" a scheme, conspiracy, or pattern, the only

question is whether the victims identified by the Government were

"directly and proximately harmed" by the offense of conviction.

A person is directly harmed, for purposes of the MVRA, when the

harm results "from conduct underlying an element of the offense of

conviction." United States v. Blake, 81 F.3d 498, 506 (4th Cir. 1996)

(construing identical language of the Victim and Witness Protection

Act of 1982 (VWPA)).4 Under this definition, only the credit card

company or companies liable for the fraudulent charges made on

4

Blake addressed application of a prior version of the VWPA, which

defined a victim only as one "directly harmed" by the offense of convic-

tion. Subsequent to Blake, the VWPA was amended to define "victim"

as one "directly and proximately harmed" by the offense of conviction.

18 U.S.C.A. § 3663(a)(2) (West 2000); see id. Hist. & Statutory Notes.

The MVRA, which was enacted at about the time of the Blake decision,

has always included those who suffer proximate harm in the definition

of victim. Because the addition of the conjunctive phrase "and proxi-

mately" does not broaden the definition of "victim," see United States v.

Thomas, 315 F.3d 190, 196 (3d Cir. 2002) (noting that use of the con-

junctive limits the reach of a statute), Blake is still controlling.

12 UNITED STATES v. DAVENPORT

May 17 were directly harmed by the offense conduct. See id. at 506-

07 & n.5 (holding that the conduct forming the offense of fraudulent

use of unauthorized access devices does not include the theft of the

access devices). Norma Brown and the other individuals and busi-

nesses to whom restitution was awarded thus were not directly and

proximately harmed by the conduct underlying the offense of convic-

tion and are thus not entitled to restitution under the MVRA. Indeed,

based on the record currently before us, it appears that Davenport is

liable, at most, for $58.85—the amount charged to Brown’s credit

card. Therefore, while we do not preclude the possibility that the dis-

trict court could make factual findings supporting an award of the full

amount of restitution to all of the identified victims, on the present

record the award is plainly erroneous. We note, as we did in Blake,

that this result "represents poor sentencing policy," id. at 506, that can

be corrected in the future only through congressional action or

through a plea agreement that requires a defendant to make restitution

"to persons other than the victim of the offense," 18 U.S.C.A.

§ 3663A(a)(3) (West 2000).

We further conclude that the erroneous restitution order affected

Davenport’s substantial rights, at the very least by requiring him to

pay substantially more restitution than allowed by statute. See United

States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005) (holding that

plainly erroneous restitution order affected the defendant’s substantial

rights when the restitution amount exceeded statutory limits). And,

we believe that refusal to notice the error in a restitution order that

exceeds the amount permitted by statute would seriously affect the

fairness, integrity or public reputation of judicial proceedings. We

therefore exercise our discretion to notice the error.

IV.

For the reasons set forth above, we vacate Davenport’s sentence

and the restitution order and remand for further proceedings.

VACATED AND REMANDED