Petition for Writ of Certiorari — Rakeem Asaad Davis, Petitioner v. United States

NO:

IN THE

SUPREME COURT OF THE UNITED STATES

RAKEEM DAVIS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Jacqueline E. Shapiro

40 N.W. 3rd Street, PH 1

Miami, Florida 33128

Tel. 305-403-8207

shapiro.miamilaw@gmail.com

Counsel for Petitioner

QUESTIONS PRESENTED

Petitioner was charged with possession of a firearm and ammunition by a

convicted felon, in violation of 18 U.S.C. § 922(g). The indictment charged possession

of a single firearm and related ammunition on a specific date, but at trial, the

government presented alternative theories of guilt based on evidence of petitioner’s

uncharged possession of other firearms on other occasions. The government presented

no evidence of, and the trial court did not instruct the jury on, the knowledge element

of a § 922(g) offense; thus the question of whether petitioner knew he was ineligible to

possess a firearm was not decided by the jury. The questions presented are:

1.

Does the failure to require a unanimous jury verdict on either charged or

uncharged theories of prosecution violate the Sixth Amendment right to a verdict

under Richardson v. United States, 526 U.S. 813 (1999)?

2.

Should certiorari be granted and the case remand for reconsideration in

light of Rehaif v. United States, 139 S.Ct. 2191 (2019), because the government did not

endeavor to make the required showing of petitioner’s knowledge of his prohibited

status and the jury was not instructed on the knowledge element?

i

INTERESTED PARTIES

The are no parties interested in the proceeding other than those named in the

caption of the appellate decision.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

INTERESTED PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

PETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY AND OTHER PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

Non-unanimous verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II.

Rehaif error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

APPENDIX

Decision of the Court of Appeals for the Eleventh Circuit denying motion

for certificate of appealability, United States v. Rakeem Davis, No.

18-10140, 777 Fed.Appx. 360 (June 12, 2019) . . . . . . . . . . . . . . . . . . . . App. 1

Decision of the Court of Appeals for the Eleventh Circuit denying petition

for panel rehearing, United States v. Rakeem Davis, No. 18-10140 (Aug.

14, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 19

Judgment of Conviction, United States District Court, S.D. Fla., United

States v. Rakeem Davis, No. 17-cr-20582-JEM (Jan. 10, 2018) . . . . . . App. 20

iii

TABLE OF AUTHORITIES

CASES:

Ramos v. Louisiana, 139 S.Ct. 1318 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Rehaif v. United States, 139 S.Ct. 2191 (2019) . . . . . . . . . . . . . . . . . . . . . . . . i, 10, 11

Richardson v. United States, 526 U.S. 813 (1999) . . . . . . . . . . . . . . . . . . . . i, 6, 9, 10

United States v. Garcia-Rivera, 353 F.3d 788 (9th Cir. 2003) . . . . . . . . . . . . . . . . . 8

United States v. Lapier, 796 F.3d 1090 (9th Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Verrecchia, 196 F.3d 294 (1st Cir. 1999) . . . . . . . . . . . . . . . . . . . . 9

United States v. Villegas, 494 F.3d 513 (5th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . 9

STATUTORY AND OTHER AUTHORITY:

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 2, 6, 10

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

18 U.S.C. § 922(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 2, 6, 7, 8, 10, 11

Sup. Ct. R. 13.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. Part III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

iv

PETITION FOR WRIT OF CERTIORARI

Rakeem Davis respectfully petitions the Supreme Court of the United States for

a writ of certiorari to review the decision of the United States Court of Appeals for the

Eleventh Circuit, entered in case number 18-10140 in that court on June 12, 2019,

United States v. Davis, 777 Fed.Appx. 360.

OPINION BELOW

A copy of the decision of the United States Court of Appeals for the Eleventh

Circuit is contained in the Appendix (App. 1), along with a copy of the order of the

Eleventh Circuit denying the petition for panel rehearing (App. 19).

STATEMENT OF JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C. § 1255 and P ART III of the

RULES OF THE SUPREME COURT OF THE UNITED STATES. The decision of the court of

appeals was entered on June 12, 2019, and rehearing was denied on August 14, 2019.

This petition is timely filed pursuant to SUP. CT. R. 13.1.

STATUTORY AND OTHER PROVISIONS INVOLVED

Petitioner intends to rely upon the following constitutional and statutory

provisions:

U.S. Const. amend. V (Due Process Clause):

No person shall … be deprived of life, liberty, or property, without due

process of law . . . .

1

U.S. Const. amend. VI (right to jury trial in criminal cases):

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury . . . .

STATEMENT OF THE CASE

Petitioner was charged in a one-count indictment with possessing Browning

9-mm handgun and ten rounds of ammunition after being convicted of a felony, in

violation of 18 U.S.C. § 922(g). The petitioner proceeded to a jury trial.

At trial, the government presented testimony that three rounds of ammunition

were found in the gun named in the indictment, and seven rounds were found in

another, uncharged gun. Further testimony showed that both guns originated in a

single location within an apartment; the uncharged gun was moved to a different

location; and both guns later were found in two separate locations within the

apartment. The district court gave a general unanimity instruction ("Your verdict,

whether guilty or not guilty, must be unanimous. In other words, you must all agree."

DE:80:210), but it did not instruct the jurors that they were required to agree on the

guns(s) or ammunition petitioner possessed, or when or where he possessed the

forbidden item(s).

Evidence was presented that Michael Williams was a paid confidential

informant (CI) for the Bureau of Alcohol, Tobacco and Firearms (ATF) and the

Metro-Dade Police Department. Over a period of about one and one-half years,

Williams worked on about ten cases (according to his recollection) or dozens (according

to the recollection of his ATF handler). Williams earned around $20,000 in total as a

2

CI. He was the chief witness against petitioner, and he was paid about $1,900 for his

work in bringing this case to trial.

Williams testified that an acquaintance named Emmanuel Duncanson called

him on July 28, 2017, and asked to meet. Williams drove to a park, where Duncanson

and petitioner were waiting for him. After driving separately from the park to a

nearby home, Duncanson and the petitioner got into Williams’ car. Williams testified

that Duncanson asked Williams and the petitioner if they had a gun. According to

Williams, both said no, but the petitioner said he could get one. The petitioner gave

Williams directions to a residence. En route, Duncanson announced he had to kill a

man named Ike, because Ike said Duncanson's sister could not sell drugs in a

particular apartment complex.

Williams testified that the petitioner led the others into an apartment, where

three guns were lying on a bed: a rifle, a 9 millimeter pistol, and a gun Williams

recognized as a .45 caliber handgun. Duncanson selected the 9 millimeter, and the

petitioner carried it out of the house. They returned to the car.

Williams drove Duncanson and the petitioner to another apartment complex,

where they drove around and looked for Ike. They spotted Ike, and Duncanson asked

the petitioner to shoot him. The petitioner refused. Duncanson grabbed the gun from

the petitioner, stuck his arm through the window, and started shooting. Williams

testified he sped away in an effort to prevent Duncanson from hitting anyone.

3

Williams dropped Duncanson off at a residence and took petitioner back to the

apartment where they had retrieved the gun. The petitioner had the gun at that point.

DE:80:53.

Williams had been in contact with law enforcement at various times while these

events unfolded. After dropping off his passengers, Williams led a police officer to the

site where Duncanson had shot the gun. Officers recovered three shell casings and two

damaged projectiles.

Hours later, at approximately 2:00 a.m., six ATF agents entered the apartment

where the gun had been retrieved and executed a search warrant. The team broke the

door down when it was not opened immediately after they knocked and announced

themselves. They found petitioner and a woman in the apartment. The agents

searched the apartment and found two guns: a Browning 9 millimeter pistol loaded

with three rounds of ammunition and an SCCY 9 millimeter pistol containing seven

rounds of ammunition. The Browning pistol looked like a .45 caliber handgun. The

agents did not find a rifle in the apartment.

The parties stipulated that petitioner previously had been convicted of a felony

(prior to July 29, 2017) and that he was not permitted to possess a firearm at the

relevant time, but there was no stipulation or evidence regarding whether petitioner

was aware that he had been convicted of a felony.1 They also stipulated that the

1

During jury selection, the district court advised the jury venire, in relation to its duty

to reveal prior convictions: “[T]here are some things that are kind of real hard not to

remember. ... I would probably remember if I were convicted of a crime. Things like that that

you really -- it's not normal to not remember.” Trial trans. at 8.

4

Browning pistol and ten rounds of ammunition had moved in interstate commerce.

The SCCY pistol was manufactured in Florida, and had not moved in interstate

commerce. Petitioner was not charged with possessing it. A firearms examiner

testified the casings recovered at the reported shooting site were fired from the SCCY

pistol, and the damaged projectiles could have been fired from the same gun.

In its jury charge, the district court failed to instruct the jury that it was

required to agree unanimously about which, if any, object(s) petitioner possessed

illegally, or the time and place of the possession. The district court also failed to

instruct the jury that on the knowledge-of-felon-status element of the offense. At the

conclusion of trial and following jury deliberations, the jury returned a general verdict

of guilty. At sentencing, the district court imposed a 100-month term of imprisonment

and a 3-year term of supervised release.

The petitioner appealed to the Eleventh Circuit, challenging, inter alia, whether

the district court erred by not instructing the jury that it was required to reach a

unanimous decision about which, if any, firearm or ammunition petitioner possessed,

and about when and where any possession occurred. The court of appeals issued an

unpublished opinion affirming the judgment, concluding that petitioner “has identified

no on-point precedent in this Court or the Supreme Court holding that a special

unanimity instruction is required in the circumstances presented by this case.” App.

14 (internal quotation marks omitted). The court of appeals reasoned that “even

assuming there were multiple possible sets of facts on which [petitioner]’s conviction

5

could have been based, jurors would have understood from the court’s instructions that

they were required to ‘all agree’ on which set of facts grounded the conviction,” because

the indictment charged only one event and the district court “repeatedly instructed the

jury that its verdict must be unanimous.” App. 15.

REASONS FOR GRANTING THE PETITION

I.

Non-unanimous verdict. The district court’s jury instructions erroneously

permitted the jury to convict petitioner of violating 18 U.S.C. § 922(g)(1) even if the

jurors disagreed on which firearm and/or ammunition he possessed, if any, as well as

where and when he possessed such a firearm and/or ammunition. In light of evidence

that the petitioner possessed firearms or ammunition at different times and at

different places, the jurors may have convicted him based on non-unanimous findings

about how and where the charged offense occurred.

As the Eleventh Circuit recognized in its decision, this Court has ruled that “a

jury in a federal criminal case cannot convict unless it unanimously finds that the

Government has proved each element.” App. 13 (quoting Richardson v. United States,

526 U.S. 813, 817 (1999)). Pursuant to the Sixth Amendment, a defendant is entitled

to a unanimous jury verdict. See United States v. Lapier, 796 F.3d 1090, 1098 (9th

Cir. 2015).2 In the present case, the district court’s jury instructions erroneously

permitted the jury to convict the petitioner of violating 18 U.S.C. § 922(g)(1), even if

2

The Court will decide this term whether the Sixth Amendment right to a unanimous

verdict also applies to the States under the Fourteenth Amendment’s due process clause. See

Ramos v. Louisiana, 139 S.Ct. 1318 (2019).

6

the jurors disagreed on which guns and ammunition he possessed, if any, and when

and where any such possession occurred. In light of government’s presentation of, and

reliance on, evidence that the petitioner possessed the forbidden items at different

times and at different places, the jurors were left free to convict him based on

non-unanimous findings about how, when, and where the charged offense occurred.

The petitioner was charged with specific firearm possession conduct alleged to

have been committed after he was convicted of a felony, in violation of 18 U.S.C. §

922(g)(1). The government presented testimony that three rounds of ammunition were

found in the gun named in the indictment, and seven rounds were found in another,

uncharged gun. Further testimony showed that (1) both guns (and possibly all of the

ammunition) originated in a single location within an apartment; (2) the uncharged

gun (and possibly the associated ammunition) was moved to a different location; and

(3) the two guns and all associated ammunition later were found in two separate

locations within the apartment. See also App. 12 (court of appeals recognizing that

“the evidence showed possession of guns or ammunition at three separate points: (1)

before the shooting, when the guns were at the apartment; (2) during the shooting,

when the uncharged gun was used; and (3) after the shooting, when both guns and all

associated ammunition were found in separate locations in the apartment.”).

In assessing the evidence regarding possession of the charged and uncharged

guns and the ammunition, different jurors could have made conflicting findings about

when and where petitioner possessed the forbidden items, and which forbidden items

he possessed.

Under these circumstances, where the indictment was limited to

7

allegations as to only one specifically-identified firearm and a fixed amount of

ammunition, while the evidence extended to uncharged proscribed items, the district

court's failure to give a specific unanimity instruction to the jury was plain error.

The Eleventh Circuit’s decision, finding no plain error in the failure to instruct

the jury on unanimity, is at odds with the decision of the Ninth Circuit in United

States v. Garcia-Rivera, 353 F.3d 788, 790-92 (9th Cir. 2003). In Garcia-Rivera, a

defendant was charged with one count of violating § 922(g)(1). 353 F.3d at 790. The

government presented evidence that would have supported findings that the defendant

possessed a single gun during three overlapping time periods. Id. The district court

gave the jury an instruction that would have allowed a conviction based on findings

that the illegal gun possession occurred during any of the three periods, without a

unanimous agreement about when the possession occurred. Id. The reviewing court

held that, regardless of whether an abuse of discretion or plain error standard of

review applied, the district court committed reversible error by failing to require the

jurors to agree on the date or incident used to find the defendant guilty. Id. at 792.

The Ninth Circuit further held that the district court's failure to poll the jury to

determine the basis for their verdict "resulted in a questionable verdict.” Id.

The same result reached in Garcia-Rivera is compelled here. The jury heard

evidence of impermissible gun and/or ammunition possession occurring in different

times and at different places during the course of a day. The court instructed the jury

that they were required to agree unanimously that an illegal possession had occurred,

but it did not instruct that unanimity was required concerning which firearm or

8

ammunition petitioner possessed, or when or where the possession occurred. The court

simply stated: “Your verdict, whether guilty or not guilty, must be unanimous. In

other words, you must all agree.” DE:80:210. The court also read the general verdict

form to the jury as “another reminder that it has to be unanimous.” DE:80:211. The

form, as quoted by the court, stated, “We, the jury… find the Defendant guilty or not

guilty.” Id.

Contrary to the Eleventh Circuit, this general instruction was inadequate where

it was unaccompanied by any explanation of the nature of the required agreement with

respect specifically to the single firearm and ammunition violation charged. Cf.

United States v. Villegas, 494 F.3d 513 (5th Cir. 2007) (no error in failing to give

specific unanimity charge where the indictment alleged “one or more firearms” that

together formed a single crime—unlike petitioner’s case in which the multiple-firearm

and ammunition evidence involved uncharged firearms and ammunition that were not

elements of the charged offense); United States v. Verrecchia, 196 F.3d 294 (1st Cir.

1999) (no plain error in failing to afford jury specific unanimity instruction, where the

evidence was limited to the charged firearms—contrary to the circumstances in

petitioner’s case involving evidence of other firearms and ammunition that were not

charged in the indictment and thus not elements of the charged offense).

The return of a general verdict of guilty left open the possibility that the jurors

did not agree on the firearm and/or ammunition the petitioner possessed, or the time

or location of the possession, contrary to the principle enunciated in Richardson, 526

U.S. at 817, that “a jury in a federal criminal case cannot convict unless it

9

unanimously finds that the Government has proved each element.” The instructional

lapse in this case, which permitted the jury to reach a verdict that was non-unanimous

as to the firearm element of the charged offense, infringed petitioner’s Sixth

Amendment rights. In order to clarify the scope of the Sixth Amendment principles

articulated by this Court in Richardson, and to resolve the conflicting circuit court

rulings regarding the impropriety of the type of non-specific jury instruction given in

this case, certiorari is warranted.

II.

Rehaif error. On June 21, 2019, while petitioner's direct appeal was

pending, this Court decided Rehaif v. United States, 139 S.Ct. 2191 (2019), and held

that, to prove a status-based possession charge under § 922(g), the government “must

show that the defendant knew he possessed a firearm and also that he knew he had the

relevant status when he possessed it.” Id. at 2194. Because the government did not

prove that petitioner Rehaif knew that he was illegally in the United States, the Court

reversed the judgment and remanded. Id. at 2200.

As Justice Alito observed in his dissent, “[t]hose for whom direct review has not

ended will likely be entitled to a new trial” because of the Court's decision. Id. at 2213

(Alito, J., dissenting). And indeed, this Court has issued at least two dozen orders since

Rehaif granting certiorari, vacating the judgment, and remanding for reconsideration

in cases where the petitioners were convicted of a § 922(g) offense, but the jury was not

required to find knowledge of the relevant status. 3 Many of these cases involved

See Allen v. United States, No. 18-7123 (U.S. June 28, 2019); Reed v. United States,

No. 18-7490 (U.S. June 28, 2019); Moody v. United States, No. 18-9071 (U.S. June 28, 2019

3

10

§922(g)(1) felon-in-possession convictions, and while the issue was raised for the first

time before this Court in many of them, the Court has not treated that as an obstacle

to obtaining a remand.

Here, too, petitioner was convicted of a § 922(g) offense, but the jury was not

required to find that he knew that he had the relevant status. Accordingly, as it has

done in analogous cases, the Court should grant, vacate, and remand for the lower

courts to reconsider petitioner's conviction in light of Rehaif.

CONCLUSION

For the foregoing reasons, the Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

JACQUELINE E. SHAPIRO, ESQ.

Counsel for Petitioner

Miami, Florida

November 2019

Order); Hall v. United States, No. 17-9221 (U.S. June 28, 2019); Humbert v. United States,

No. 18-8911 (U.S. Oct. 7, 2019); Contreras v. United States, No. 18-9425 (U.S. Oct. 7, 2019);

Greer v. United States, No. 18-9444 (U.S. Oct. 7, 2019); Gilbert v. United States, No. 18-9589

(U.S. Oct. 7, 2019); Cook v. United States, No. 189707 (U.S. Oct. 7, 2019); Hale v. United

States, No. 18-9726 (U.S. Oct. 7, 2019); Robinson v. United States, No. 19-5196 (U.S. Oct. 7,

2019); Jackson v. United States, No. 19-5260 (U.S. Oct. 7, 2019); McCormick v. United States,

No. 19-5270 (U.S. Oct. 7, 2019); Parks v. United States, No. 19-5330 (U.S. Oct. 7, 2019);

Donate-Cardona v. United States, No. 19-5014 (U.S. Oct. 15, 2019); Thomas v. United States,

No. 19-5025 (U.S. Oct. 15, 2019); Stacy v. United States, No. 19-5383 (U.S. Oct. 15, 2019);

McCants v. United States, No. 19-5456 (U.S. Oct. 15, 2019); Atkinson v. United States, No.

19-5572 (U.S. Oct. 15, 2019); Perez v. United States, No. 19-5565 (U.S. Oct. 15, 2019); Cox v.

United States, No. 19-5027 (U.S. Oct. 15, 2019); Johnson v. United States, No. 19-5181 (U.S.

Oct. 21, 2019); Watkins v. United States, No. 19-5217 (U.S. Oct. 21, 2019); Legrier v. United

States, No. 19-5623 (U.S. Oct. 21, 2019).

11

APPENDIX

APPENDIX

Decision of the Court of Appeals for the Eleventh Circuit denying motion

for certificate of appealability, United States v. Rakeem Davis, No.

18-10140, 777 Fed.Appx. 360 (June 12, 2019) . . . . . . . . . . . . . . . . . . . . App. 1

Decision of the Court of Appeals for the Eleventh Circuit denying petition

for panel rehearing, United States v. Rakeem Davis, No. 18-10140 (Aug.

14, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 19

Judgment of Conviction, United States District Court, S.D. Fla., United

States v. Rakeem Davis, No. 17-cr-20582-JEM (Jan. 10, 2018) . . . . . . App. 20

Case: 18-10140

Date Filed: 06/12/2019

Page: 1 of 18

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-10140

Non-Argument Calendar

________________________

D.C. Docket No. 1:17-cr-20582-JEM-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RAKEEM ASAAD DAVIS,

a.k.a. Poo Poo,

Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(June 12, 2019)

Before MARCUS, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:

App. 1

Case: 18-10140

Date Filed: 06/12/2019

Page: 2 of 18

Rakeem Davis appeals his conviction and sentence for unlawful possession of

a firearm and ammunition. He argues that he is entitled to a new trial for two reasons:

(1) the district court failed to conduct an inquiry into his counsel’s pretrial motion to

withdraw; and (2) the court failed to give a special instruction to the jury to ensure

unanimity with respect to the factual grounds of conviction. He also challenges his

sentence, arguing that the court procedurally erred by failing both to verify that he

and his counsel had reviewed the presentence investigation report and to calculate

the guideline range. After careful review, we reject these arguments and affirm.

I.

Davis was indicted in August 2017 for possession of a firearm and

ammunition after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). The

indictment charged possession of a Browning 9mm handgun and ten rounds of 9mm

ammunition on July 29, 2017. Davis pled not guilty.

About two weeks before the trial was scheduled to start in late October 2017,

Davis’s counsel, Ruben Garcia, who had been appointed in early September 2017

under the Criminal Justice Act, 18 U.S.C. § 3006A, moved to withdraw. Counsel

sought withdrawal due to “unreconcilable differences about the conduct of the

Defendant’s defense and because Mr. Davis does not trust counsel and he wishes to

proceed to trial.” Counsel explained that he had met with Davis four times and had

gone over the evidence, jury instructions, voir dire questions, the government’s

App. 2

Case: 18-10140

Date Filed: 06/12/2019

Page: 3 of 18

intent to introduce Rule 404(b), Fed. R. Evid., evidence, and a plea offer and

proposed factual proffer. At the last conference, according to counsel, Davis had

“angrily ended” the conversation and asked for Garcia to withdraw. Counsel wrote

that “Davis does not believe undersigned counsel is acting in Defendant’s best

interest and believes that counsel wants the Defendant to plead guilty.”

Nevertheless, counsel stated that he had informed the government that Davis was

going to trial.

The district court denied the motion a few days later at a status conference.

The court stated that it had reviewed the motion and the reasons given therein. The

court then addressed Davis as follows:

Mr. Davis, I just want to tell you, you can replace him with any lawyer

you want if you can hire a lawyer, but you got a competent lawyer. Mr.

Garcia is a competent lawyer that has been tried and tested. We have - he has tried many cases in front of me. He is a competent lawyer. He

may not be telling you what you want to hear, but I bet he’s telling you

what the law is. And if you find another lawyer, I want to tell you that

he better be ready to go to trial next week because that’s when the trial

is set. Excuse me. A week from Monday.

And whether -- it seems to be the motion du jour over at the

prison now that a week or two before trial, they say oh, I don’t like my

lawyer anymore, he’s not giving me good advice and I’m not going to

take it anymore, I want a new lawyer and then try to get a continuance.

I don’t know for what reason, but it’s not happening. The case is going

to trial.

App. 3

Case: 18-10140

Date Filed: 06/12/2019

Page: 4 of 18

Without asking to hear from Davis or Garcia, the court found that Garcia was “more

than capable of representing [Davis]” in this “very simple case” and denied the

motion to withdraw.

The case proceeded to trial. A confidential informant (“CI”) testified that he

met up with Davis and Emmanuel Duncanson on July 28. According to the CI,

Duncanson asked the other two if they had a gun, and Davis said he could get one.

The CI further testified that Davis gave directions to an apartment. On the way,

Duncanson announced that he wanted to kill a man named Ike for interfering with

his sister’s drug business.

At the apartment, the CI attested, Davis showed

Duncanson two handguns and a rifle, which were lying on a bed. Duncanson

selected one of the handguns, and Davis carried it out of the house. The CI then

drove Duncanson and Davis to an apartment complex where they spotted Ike. The

CI explained that when Davis refused to shoot at Ike, Duncanson grabbed the gun

and fired several shots out of the car window, which missed, as the CI sped away

from the scene.

At 2:00 a.m. the next morning, July 29, federal law-enforcement agents

executed a search warrant at the apartment where Davis had retrieved the gun before

the shooting. Davis and a woman were present in the apartment. The search

revealed two handguns:

(1) a Browning 9mm loaded with three rounds of

ammunition; and (2) an SCCY 9mm loaded with seven rounds of ammunition.

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According to the CI, both guns were present at the apartment before the shooting,

but only the SCCY 9mm was used in the shooting. A federal law-enforcement agent

testified that Davis was not charged with possession of the SCCY 9mm because

there was no evidence it had moved in interstate commerce. The parties stipulated

that Davis was not permitted to possess a firearm due to a prior felony conviction.

Based upon the parties’ joint proposed jury instructions, the district court

informed the jury that “[t]he sole count of the indictment charges the Defendant with

being a felon in possession of a firearm and ammunition,” and that the jury would

be given a copy of the indictment. The court instructed the jury that the offense had

two elements: (1) knowing possession of a firearm or ammunition in or affecting

interstate commerce, (2) that occurred after having been convicted of a felony. The

court cautioned the jury that Davis was “on trial only for the specific crime charged

in the indictment” and that it was the jury’s job “to determine from the evidence in

this case whether the Defendant is guilty or not guilty of that specific crime.” The

court further advised that the “verdict, whether guilty or not guilty, must be

unanimous. In other words, you must all agree.” Finally, when going over the

general verdict form—which simply asked the jury to find whether Davis was guilty

or not guilty—the court reiterated to the jury that the verdict needed to be unanimous.

Defense counsel did not object to these instructions.

The jury unanimously found Davis guilty.

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Davis’s presentence investigation report (“PSR”) recommended a total

offense level of 24 and criminal-history category of V.

This established a

recommended guideline imprisonment range of 92 to 115 months. Davis did not file

any objections. The government filed a sentencing memorandum.

The district court began sentencing by stating that it had reviewed the PSR,

the government’s sentencing memorandum, and the addendum to the PSR, and the

court noted that no objections had been made. The court then asked the parties for

their views on an appropriate sentence. The government asked for a sentence at the

“high end of the guidelines,” citing the seriousness of the offense conduct and

Davis’s substantial criminal history. Davis’s counsel argued for a sentence at “the

low end of the guidelines, 92 months,” referencing the PSR and asserting that

Davis’s criminal history was due to drug abuse, lack of guidance, and other

circumstantial factors. Davis personally requested 92 months.

The district court sentenced Davis to 100 months. The court explained that it

believed Davis was “a danger to the community” but that it wanted to give Davis an

opportunity to reform by sentencing him “toward the low end of the guideline

range,” though not “all the way down to 92.” Davis did not raise any objections at

sentencing. He now appeals.

II.

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Davis first appeals the denial of his counsel’s motion to withdraw, which we

will characterize as a “substitution motion.” Davis argues that the district court erred

in failing to conduct an inquiry into why he wanted new counsel and that he was

prejudiced by counsel’s continued representation during trial.

Substitution motions must be decided “in the interests of justice,” 18 U.S.C.

§ 3006A(c), a standard that “contemplates a peculiarly context-specific inquiry,”

Martel v. Clair, 565 U.S. 648, 663 (2012). In reviewing substitution motions, we

consider several factors, including the timeliness of the motion; the adequacy of the

court’s inquiry into the merits of the motion; and the asserted cause for the motion,

including the extent of the conflict or breakdown in communication between the

defendant and his counsel. Id.; United States v. Calderon, 127 F.3d 1314, 1343 (11th

Cir. 1997). “Because a trial court’s decision on substitution is so fact-specific, it

deserves deference[.]” Martel, 565 U.S. at 663–64. We may overturn it “only for

an abuse of discretion.” Id. at 664; Calderon, 127 F.3d at 1343.

The first factor—the timeliness of the motion—slightly favors denial. While

counsel appears to have promptly moved to withdraw when asked by Davis, the

substitution motion was filed just two weeks before the trial was scheduled to begin

and after a continuance had already been granted. While we see nothing to indicate

intentional delay, we also understand the court’s concern about the potential for

delay. Cf. Robinson v. Boeing Co., 79 F.3d 1053, 1055 (11th Cir. 1996) (“Courts

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have long accepted that resulting delay may justify the exercise of a trial judge’s

discretion to deny substitute counsel in the midst of litigation.”).

The second factor—the adequacy of the court’s inquiry—cuts in favor of

Davis. As the Supreme Court has stated, “courts cannot properly resolve substitution

motions without probing why a defendant wants a new lawyer.” Martel, 565 U.S.

at 664. The district court must engage in at least some inquiry about “the source and

factual basis” of the defendant’s dissatisfaction with an attorney, even if the judge is

professionally acquainted with the attorney. United States v. Young, 482 F.2d 993,

995 (5th Cir. 1973)1; see also Brown v. United States, 720 F.3d 1316, 1336 (11th

Cir. 2013) (“The trial court is obliged to explore the extent of the conflict and any

breakdown in communication between the lawyer and the client.”). Moreover, such

“an on-the-record inquiry into the defendant’s allegations ‘permit[s] meaningful

appellate review’ of a trial court’s exercise of discretion.” Martel, 565 U.S. at 664.

The district court here addressed the substitution motion at a hearing and

considered the reasons for withdrawal listed in the motion. But the court did not

probe the extent of the conflict and any breakdown in communication,

notwithstanding the court’s professional familiarity with Davis’s counsel or its

1

This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,

1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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doubts about the motivations behind the motion. See Brown, 720 F.3d at 1336;

Young, 482 F.2d at 995.

Nevertheless, we do not believe that the district court’s failure to probe more

deeply is enough, on this record, to render the court’s ruling an abuse of discretion.

That’s because Garcia, Davis’s counsel, listed the reasons for withdrawal in the

substitution motion, and the court reasonably could have concluded that further

inquiry was unnecessary because the clearly listed reasons did not warrant

substitution. See McKee v. Harris, 649 F.2d 927, 934 (2d Cir. 1981) (“If the reasons

are made known to the court, the court may rule without more.”); cf. Young, 482

F.2d at 995 (stating that inquiry is necessary when the defendant presents a

“seemingly substantial complaint about counsel”). In other words, the third factor—

the asserted cause for the motion—strongly favors denial of the motion.

“An indigent criminal defendant has an absolute right to be represented by

counsel, but he does not have a right to have a particular lawyer represent him, nor

to demand a different appointed lawyer except for good cause.”

Thomas v.

Wainwright, 767 F.2d 738, 742 (11th Cir. 1985); see United States v. Garey, 540

F.3d 1253, 1263 (11th Cir. 2008) (en banc). Whether good cause exists “cannot be

determined ‘solely according to the subjective standard of what the defendant

perceives.’” Thomas, 767 F.2d at 742 (quoting McKee, 649 F.2d at 932). For that

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reason, “[a] defendant’s general loss of confidence or trust in his counsel, standing

alone, is not sufficient.” Id.

Here, the substitution motion reveals little more than Davis’s “general loss of

confidence or trust in his counsel,” Garcia. Id. According to the motion, the conflict

between attorney and client was that Garcia wanted Davis to accept the

government’s plea offer, but Davis wanted to proceed to trial. As a result, Davis did

not trust Garcia and did not believe that Garcia was acting in his best interests. In

resolving the motion, the court understood that the nature of the conflict stemmed

from Davis’s dissatisfaction with Garcia’s plea advice, see Doc. 85 at 2 (“He may

not be telling you what you want to hear, but I bet he’s telling you what the law is.”),

which alone does not constitute good cause, see McKee, 649 F.2d at 932–33

(defendant’s dissatisfaction with counsel’s “frank advice” to plead guilty does not

amount to good cause). And the record reflects that Garcia respected Davis’s desire

to proceed to trial and was prepared for it. Because the clearly listed reasons in the

substitution motion did not indicate that Davis could establish good cause, we cannot

say that the court abused its discretion in denying the motion without a probing

inquiry.

Nevertheless, we acknowledge that our review is inhibited by the district

court’s lack of a formal inquiry. See Martel, 565 U.S. at 664. All we have to go on

is the substitution motion itself. And the motion may not fully convey “the extent

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of the conflict and any breakdown in communication,” which is why further inquiry

by the court is generally necessary. See Brown, 720 F.3d at 1336.

However, while the district court should have probed the matter more deeply

at the status hearing, and even assuming the court erred in failing to do so, we

conclude that the failure to conduct an inquiry in this case was harmless. 2 See

McKee, 649 F.2d at 933 (“[W]hile [the trial judge] should have conducted a formal

inquiry, the failure to do so in this case was harmless.”). In his briefing on appeal,

Davis does not suggest any other reason beyond those listed in the motion that would

have been elicited by a formal inquiry. His reply brief merely states that he “lacked

confidence in his attorney’s ability or willingness to advocate effectively on his

behalf,” which is not sufficient to warrant substitution. See Thomas, 767 F.2d at

742. Nor can we infer a breakdown in communication from the trial errors allegedly

committed by counsel—asking a particular question on cross-examination and

failing to request a special verdict—since they do not appear to stem in any way

from the dispute that precipitated the substitution motion.

2

Aside from those

Our harmlessness inquiry focuses on the state of facts at the time of the substitution

motion. While Davis argues that the failure to inquire into a substitution motion warrants a new

trial, a remedy some courts have granted in the past, the Supreme Court has now stated that “[t]he

way to cure that error” is to remand to the district court “to decide whether substitution was

appropriate at the time of [the substitution motion].” Martel, 565 U.S. at 666 n.4 (noting that the

court of appeals had “ordered the wrong remedy even assuming the District Court had abused its

discretion in denying Clair’s substitution motion without inquiry”). Because the remedy for a lack

of inquiry would be remand for consideration of the substitution motion, we must consider whether

Davis could show on remand that substitution was appropriate at the time the motion was filed.

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unrelated errors, Davis has pointed us to nothing in the record that would suggest

that the conflict between Davis and Garcia affected Davis’s trial defense.

Accordingly, despite the court’s failure to conduct an appropriate inquiry, we cannot

conclude that Davis was harmed by that failure.

We therefore affirm the district court’s denial of the substitution motion.

III.

Davis next argues that the district court plainly erred by failing to instruct the

jury that it was required to reach a unanimous decision about which, if any, firearm

or ammunition Davis possessed, and where and when any possession occurred. He

says that jurors could have made conflicting findings on these points, in violation of

his Sixth Amendment right to a unanimous jury verdict, because the evidence

showed possession of guns or ammunition at three separate points: (1) before the

shooting, when the guns were at the apartment; (2) during the shooting, when the

uncharged gun was used; and (3) after the shooting, when both guns and all

associated ammunition were found in separate locations in the apartment.

We review this argument for plain error because Davis did not object to the

jury instructions before the district court. United States v. Felts, 579 F.3d 1341,

1343 (11th Cir. 2009). Under the “plain error” standard, the defendant must

demonstrate that (1) an error occurred, (2) the error was plain, and (3) the error

affected substantial rights. Id. at 1344. “An error is not plain unless it is contrary to

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explicit statutory provisions or to on-point precedent in this Court or the Supreme

Court.” United States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013) (quotation

marks omitted). Further, “[j]ury instructions will not be reversed for plain error

unless the charge, considered as a whole, is so clearly erroneous as to result in a

likelihood of a grave miscarriage of justice, or the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Starke, 62

F.3d 1374, 1381 (11th Cir. 1995) (quotation marks omitted).

“[A] jury in a federal criminal case cannot convict unless it unanimously finds

that the Government has proved each element.” Richardson v. United States, 526

U.S. 813, 817 (1999). But “a federal jury need not always decide unanimously

which of several possible sets of underlying brute facts make up a particular element,

say, which of several possible means the defendant used to commit an element of

the crime.” Id. For instance, jury disagreement about whether a robber used a knife

or a gun—a disagreement about means—would not matter so long as the jury

“unanimously concluded that the Government had proved the necessary related

element, namely, that the defendant had threatened force.” Id.

Relying on Richardson’s distinction between elements and means, several of

our sister circuits have concluded that jury unanimity is not required as to the

particular firearm or ammunition possessed for purposes of § 922(g). E.g., United

States v. Pollock, 757 F.3d 582, 587–88 (7th Cir. 2014); United States v. Talbert,

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501 F.3d 449, 451–52 (5th Cir. 2007); United States v. DeJohn, 368 F.3d 533, 542

(6th Cir. 2004); United States v. Verrecchia, 196 F.3d 294, 298–301 (1st Cir. 1999).

These circuits have reasoned that unanimity is not required because the particular

firearm or ammunition possessed is not an element of the crime under § 922(g) but

instead the means used to satisfy the element of “any firearm or ammunition.” E.g.,

DeJohn, 368 F.3d at 541–42.

Here, Davis has not established plain error. Davis has identified no “on-point

precedent in this Court or the Supreme Court” holding that a special unanimity

instruction is required in the circumstances presented by this case. See Hoffman,

710 F.3d at 1232. Nor is it obvious or clear that the matters he wished to have

decided by special verdict are elements of the offense requiring unanimity, as

opposed to “possible sets of underlying brute facts [which] make up a particular

element” for which unanimity is not required. Richardson, 526 U.S. at 817. For

example, numerous circuits have held that jury unanimity is not required as to the

particular firearm or ammunition possessed. Pollock, 757 F.3d at 587–88; Talbert,

501 F.3d at 451–52; DeJohn, 368 F.3d at 542; Verrecchia, 196 F.3d at 298–301.

Accordingly, even assuming the court erred, the error was not “plain.”

Davis’s reliance on United States v. Garcia-Rivera, 353 F.3d 788 (9th Cir.

2003), is unavailing. First, that decision is from the Ninth Circuit, so it cannot

establish a “plain” error in this Circuit. See Hoffman, 710 F.3d at 1232.

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Second, even if Garcia-Rivera were somehow binding here, it is not on point.

The indictment in Garcia-Rivera charged possession of a firearm over a time frame

between May 19, 2001, and June 7, 2001. 353 F.3d at 790. At trial, the court

instructed the jury that, to find the defendant guilty, it must find that the possession

occurred (a) uninterrupted between May 19, 2001, and June 7, 2001; (b) about a

week after the purchase of the firearm; and (c) on June 7, 2001. Id. The court told

the jury that it “must unanimously agree that the possession occurred during (a)

above, or on (b) or (c) above.” Id. The Ninth Circuit held that this instruction was

“fatally ambiguous” because the “jury could have concluded that they were required

to decide unanimously only that possession occurred during any of the three times

enumerated, not that they had to unanimously agree on which one.” Id.

No similar ambiguity is present here. The indictment charged possession of

a single firearm and ammunition on a specific date, July 29, which was after the

shooting. And the district court’s unanimity instructions, though general, were not

“fatally ambiguous” like the choose-your-own-adventure instructions in GarciaRivera. The court here repeatedly instructed the jury that its verdict must be

unanimous and the jurors “must all agree.” So even assuming there were multiple

possible sets of facts on which Davis’s conviction could have been based, jurors

would have understood from the court’s instructions that they were required to “all

agree” on which set of facts grounded the conviction. The instructions, considered

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as a whole, were not “so clearly erroneous as to result in a likelihood of a grave

miscarriage of justice” or to “affect the fairness, integrity, or public reputation of

judicial proceedings.” Starke, 62 F.3d at 1381.

For these reasons, Davis has not shown that the district court plainly erred in

failing to give a specific instruction on unanimity.

IV.

Finally, Davis contends that the district court procedurally erred at sentencing

in two ways: (1) failing to verify that Davis and his counsel had reviewed the PSR

and addendum, as required by Rule 32, Fed. R. Crim. P.; and (2) failing to calculate

the applicable guideline range at sentencing. We review these arguments for plain

error because they were raised for the first time on appeal. See United States v.

Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014) (applying plain-error review

where the defendant failed to object to a claimed procedural error).

Sentencing courts “should begin all sentencing proceedings by correctly

calculating the applicable Guidelines range,” which is “the starting point and the

initial benchmark.” Gall v. United States, 552 U.S. 38, 49 (2007). The failure to

calculate the guideline range is a “significant procedural error.” Id. at 51. Before

calculating the guideline range, the district court “must verify that the defendant and

the defendant’s attorney have read and discussed the [PSR] and any addendum to

the report.” Fed. R. Crim. P. 32(i)(1)(A). No specific inquiry is required for the

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district court to meet its obligation under Rule 32, as long as the record indicates that

counsel reviewed the PSR with the defendant. See United States v. Aleman, 832

F.2d 142, 144 & n.6 (11th Cir. 1987) (applying a prior version of Rule 32(i)(1)(A)).

Here, Davis has not established plain error. Even assuming that the district

court erred by failing to verify that Davis and his counsel had reviewed the PSR and

by failing to state the guideline range on the record at sentencing, Davis has not

shown that these errors affected his substantial rights. See Felts, 579 F.3d at 1343.

First, the sentencing transcript indicates that Davis’s counsel had reviewed the

PSR. After the court noted that there were no objections to the PSR, counsel argued

for a sentence at “the low end of the guidelines, 92 months,” which was the range

recommended by the PSR, and he cited facts from the PSR in support of that request.

Although the court did not verify that Davis personally had reviewed the PSR,

nothing in the record indicates that sentencing would have gone any differently had

the court personally questioned Davis.

Second, the record is clear that the district court implicitly adopted the PSR’s

guideline range of 92 to 115 months. And both parties framed their arguments based

on that range. The government asked for a sentence at “the high end of the guidelines

in this case[,] which is 115 months.” Davis’s counsel argued for a sentence at “the

low end of the guidelines, 92 months.” The district court then sentenced Davis

“toward the low end of the guideline range,” but not “all the way down to 92.”

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Because there was no confusion about the guideline range on which the sentence

was based, Davis has not shown that the court’s failure to state the guideline range

on the record affected his substantial rights.

V.

We affirm Davis’s conviction and sentence.

AFFIRMED.

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