24-989 United States v. Davis

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of December, two thousand twenty-five.

PRESENT: PIERRE N. LEVAL, GERARD E. LYNCH, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 24-989

DERRILYN NEEDHAM, a.k.a. INGRID, RONALD KNIBBS, a.k.a. BIRDIE, RODERICK GUNN, a.k.a. ZAPPA, Defendants,

ALTON DAVIS,

Defendant-Appellant. _____________________________________

FOR DEFENDANT-APPELLANT: Alton Davis, pro se, Bruceton Mills, WV.

FOR APPELLEE: Matthew J. King, Michael D. Maimin, Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY.

Appeal from a judgment of the United States District Court for the

Southern District of New York (Alvin K. Hellerstein, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the April 11, 2024 judgment of the district

court is AFFIRMED.

Alton Davis appeals from a judgment of conviction following his 2024

resentencing after a 2010 jury trial at which he was found guilty of one count of

conspiracy to commit Hobbs Act robbery, two counts of attempted Hobbs Act

2 robbery, two counts of using a firearm in furtherance of a crime of violence, two

counts of using a firearm during a crime of violence that resulted in the death of

another person, and one count of conspiracy to distribute marijuana. Although

the district court originally sentenced Davis to an aggregate sentence of life

imprisonment, it later vacated the four firearms counts in light of the Supreme

Court’s decision in United States v. Taylor,

(2022). The district court

then resentenced Davis on the remaining counts to 60 years’ imprisonment (20

years for each Hobbs Act count to be served consecutively, and 5 years for the

marijuana conspiracy to be served concurrently) and a life term of supervised

release. On appeal, Davis – now proceeding pro se – argues that the district

court erred when it (1) declined to reduce his offense level under U.S.S.G. §

2X1.1(b); (2) imposed consecutive sentences for the Hobbs Act counts; (3) treated

U.S.S.G. § 5G1.2(d) as mandatory; (4) failed to consider the

(a)

factors when imposing Davis’s sentence; and (5) failed to explain its imposition

of a life term of supervised release. We assume the parties’ familiarity with the

facts, procedural history, and issues on appeal, to which we refer only as needed

to explain our decision.

3 We review a district court’s sentence under “a deferential abuse-of-

discretion standard.” United States v. Cavera,

(2d Cir. 2008) (en

banc) (internal quotation marks and citation omitted). Under that standard, “[a]

sentence is procedurally unreasonable if the district court improperly calculates

the Sentencing Guidelines range or selects a sentence based on clearly erroneous

facts, or fails adequately to explain the chosen sentence.” United States v. Hunt,

(2d Cir. 2023) (alterations adopted, internal quotation marks and

citation omitted). “[We] review[] a district court’s application of the Guidelines

de novo, while factual determinations underlying a district court’s Guidelines

calculation are reviewed for clear error.” United States v. Cramer,

(2d Cir. 2015). “When a party properly objects to a sentencing error in the

district court, we review for harmless error.” United States v. Villafuerte,

(2d Cir. 2007). “By contrast, issues not raised in the trial court because

of oversight, including sentencing issues, are normally deemed forfeited on

appeal unless they meet our standard for plain error.”

4 I. Guidelines Calculation Under U.S.S.G. § 2X1.1(b)

Davis first argues that the district court misapplied the Sentencing

Guidelines when it failed to reduce the total offense level for his Hobbs Act

robbery convictions by three levels under U.S.S.G. § 2X1.1(b)(1) and (2).

Because Davis did not make this argument before the district court, we review it

for plain error.

Section § 2X1.1(b)(1) provides for a three-level reduction to the total

offense level for attempts “unless the defendant completed all the acts the

defendant believed necessary for successful completion of the substantive

offense or the circumstances demonstrate that the defendant was about to

complete all such acts but for apprehension or interruption by some similar event

beyond the defendant’s control.” U.S.S.G. § 2X1.1(b)(1) (emphasis added); see

also id. § 2X1.1(b)(2) (applying the same reduction to conspiracies unless the

defendant or a co-conspirator completed or was about to complete the predicate

acts). We have observed that this “section determines punishment based on the

conduct of the defendant, not on the probability that a conspiracy would have

achieved success,” and that “[m]any pre-existing circumstances may doom a

5 conspiracy, without rendering the conspirators any less culpable for their acts.”

United States v. Medina,

(2d Cir. 1996) (emphasis in original).

The evidence developed at trial and in the Probation Office’s presentence

investigation report (“PSR”) established that Davis was a member of a

conspiracy that planned and committed robberies of multiple drug dealers. In

one of the attempted robberies, Davis forced his way into the home of a

marijuana dealer to rob him of drugs or drug proceeds, only to find neither, and

in the process shot the drug dealer’s girlfriend in the head and chest, killing her.

In the other attempted robbery, Davis entered the residence of a different drug

dealer, tied up another occupant of the house when he discovered that the drug

dealer was not at home, questioned that person about the location of money

inside the residence, and searched the house for valuables. When the drug

dealer finally arrived at the house, Davis ultimately shot and killed him after a

struggle. There too, the only reason Davis walked away without property in

hand was because he found none to take – not for want of trying.

Based on the evidence in the record, which clearly showed that Davis

performed all the acts necessary to complete the robberies, the district court did

6 not err – much less plainly err – in declining to reduce Davis’s offense level under

§ 2X1.1(b). See Medina,

(“[W]hat matters under the Guidelines is

that [the defendant] and his co-conspirators were ‘about to complete’ the crime,

not that they were ‘about to succeed.’”).

II. Imposition of Consecutive Sentences for the Hobbs Act Counts

Davis next argues that the district court erred by imposing consecutive

sentences for the Hobbs Act conspiracy and attempted robbery counts. In

particular, he contends that the court failed to consider

(a) when

imposing consecutive terms of imprisonment. Davis did not raise this

argument before the district court, so again we review for plain error.

Section 3584(a) provides that, “[i]f multiple terms of imprisonment are

imposed on a defendant at the same time, . . . the terms may run concurrently or

consecutively, except that the terms may not run consecutively for an attempt

and for another offense that was the sole objective of the attempt.” But our

caselaw clarifies that section 3584(a) “prohibits consecutive sentences for attempt

and . . . a completed crime that was the ‘sole object’ of the attempt.” United

States v. Rahman,

, 158 n.36 (2d Cir. 1999). We have never interpreted

7 that provision to bar stacking terms of imprisonment for attempt and conspiracy

– even where they share the same goal. See id. (“Congress has not prohibited

consecutive sentences for attempts and conspiracies that have the same object.”);

see also United States v. Kapaev,

(2d Cir. 1999) (“[T]he legislative

history is clear – or as clear as legislative history ever can be – that Congress

specifically rejected a complete bar on consecutive sentences for an offense and

for a conspiracy to commit the same offense.”). Although conspiracies may

ripen into attempts, the crime of conspiracy addresses a fundamentally different

kind of “socially reprehensible conduct: collective criminal agreement.”

Callanan v. United States,

(1961). For this reason, courts

generally hold that “the commission of the substantive offense and a conspiracy

to commit it are separate and distinct offenses.” Pinkerton v. United States,

(1946); see also United States v. Gunn, No. 24-2430, __ F.4th __, __ (2d

Cir. 2025) (holding that a defendant’s “engagement in a conspiracy to violate the

Hobbs Act and . . . [his] attempt to violate the Hobbs Act are two separate

criminal violations of the Hobbs Act, for which consecutive sentences are

appropriate”). Accordingly, Davis’s consecutive terms of imprisonment for the

8 robbery conspiracy and attempted robberies do not violate section 3584(a). See,

e.g., United States v. Collymore, No. 23-7333,

, at *1 (2d Cir. Nov.

7, 2024) (affirming consecutive sentences for conspiracy and attempted robbery

under the Hobbs Act).

III. Consideration of U.S.S.G. § 5G1.2(d)

Davis also asserts that his consecutive sentences on the Hobbs Act counts

were procedurally unreasonable because the district court mistakenly believed

that U.S.S.G. § 5G1.2(d) – which instructs courts on how to impose sentences on

defendants facing multiple counts of conviction – was mandatory rather than

advisory. Again, Davis did not raise this objection below, so we review for plain

error.

Davis’s contention that the district court misapprehended the advisory

nature of the Guidelines is belied by the record. Indeed, given that the district

court imposed a concurrent sentence with respect to the marijuana conspiracy,

there can be no question that the district court understood that section 5G1.2(d)

is advisory and not mandatory.

9 IV. Consideration of

(a) Factors

Davis next argues that the district court failed to consider all the

(a) factors, including section 3553(a)(6), which requires courts to consider

the sentences of similarly situated defendants. But we “presume[] that the

sentencing judge has considered all relevant [section] 3553(a) factors and

arguments unless the record suggests otherwise,” United States v. Rosa,

(2d Cir. 2020), and “we will not assume a failure of consideration simply

because a district court fails to enumerate or discuss each [section] 3553(a) factor

individually,” United States v. Verkhoglyad,

(2d Cir. 2008).

Here, the district court expressly considered several of the section 3553(a)

factors, including promoting respect for the law, deterrence, and the seriousness

of the offense conduct. Although the district court did not explicitly mention

section 3553(a)(6), nothing in the record suggests that it failed to consider this

factor (or any other factor). To the extent that Davis argues that greater weight

should have been given to section 3553(a)(6), “[t]he weight to be afforded any

sentencing factor is a matter firmly committed to the discretion of the sentencing

judge and is beyond our review, as long as the sentence ultimately imposed is

10 reasonable.” United States v. Bleau,

(2d Cir. 2019) (internal

quotation marks and citation omitted). We therefore will not disturb the district

court’s sentence on these grounds.

V. Lifetime Term of Supervised Release

Finally, Davis asserts, for the first time on appeal, that the district court

procedurally erred when it imposed a lifetime term of supervised release because

it did not explain why a life term was necessary. We therefore review the

district court’s ruling for plain error.

“[T]he district court must satisfy us that it has considered the parties’

arguments and that it has a reasoned basis for exercising its own legal

decisionmaking authority.” Cavera,

(alterations adopted,

internal quotation marks and citation omitted). Here, the district court

thoroughly discussed its consideration of the section 3553(a) factors as they

related to Davis’s sentence. And while the court did not independently analyze

those factors with respect to Davis’s term of supervised release, it was not

required to do so. See United States v. Thompson,

(2d Cir. 2025)

(noting that a “district court typically need not separately articulate its reasons

11 for imposing a term of supervised release when it has already generally stated

its reasons for imposing a term of imprisonment”). In any event, the record

clearly establishes that a lifetime term of supervised release was appropriate

given that Davis had killed two individuals in separate attempted robberies.

See United States v. Zhong,

(2d Cir. 2022) (“We presume that a

sentencing judge has faithfully discharged her duty to consider the statutory

factors, and we do not require robotic incantations that the district court has

considered each of the [section] 3553(a) factors.” (alterations adopted, internal

quotation marks and citation omitted)); see also United States v. Betts,

(2d Cir. 2018) (noting that “we may uphold the condition imposed” even

“[i]n the absence of . . . an explanation” “if the district court’s reasoning is self-

evident in the record” (internal quotation marks and citation omitted)). Because

each of the section 3553(a) factors discussed by the district court in connection

with the term of imprisonment was equally relevant to the imposition of a term

of supervised release, we cannot say that the district court plainly erred in

imposing a lifetime term of supervised release given the unique circumstances

of this case.

12 * * *

We have considered Davis’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

13