July 20, 2012 4th Circuit published opinion

United States v Davis

Davis pled guilty to firearms charges. His plea agreement and sentencing colloquy misstated his minimum sentence. The agreement did not promise any specific sentence or bind the government to recommend any particular sentence. Davis received a 15 year sentence. He appealed arguing he should be sentenced to the lower maximum in his agreement and that he was not a career criminal. The panel, with one judge separately concurring, affirmed. It held that the error in stating the minimum sentence was not chargeable to the government and in any event the sentencing judge was without discretion to ignore a statutory minimum sentence. Finding the appeal waiver in the agreement was not knowing and voluntary due to the misstated minimum sentence, the panel turned to the merits. It held the attempted burglary conviction was a violent felony as it was materially indistinguishable from an attempted burglary statute found to be a violent felony by the United States Supreme Court. It also held teat two other burglaries occurred in different states, a month apart and with different victims. Thus, there were three prior qualifying convictions and the career offender finding was proper. The concurring judge argued that the agreement was breached by the government based on the erroneous maximum sentence. However, it argued that there was no prejudice as Davis could not prove his sentence would have been different without the breach.

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