United States of America v. Taurean Rahsaan Davis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4208
UNITED STATES OF AMERICA,
Plaintiff – Appellant,
v.
TAUREAN RAHSAAN DAVIS,
Defendant - Appellee.
No. 15-4237
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TAUREAN RAHSAAN DAVIS,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:14-cr-00107-BR-1)
Submitted: January 29, 2016 Decided: February 4, 2016
Amended: February 4, 2016

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Before NIEMEYER and MOTZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
No. 15-4208 vacated and remanded; No. 15-4237 dismissed by
unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Chief Appellate Attorney, Jennifer Dominguez, Assistant Federal
Public Defender, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Erin C. Blondel, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Taurean Rashaan Davis pleaded guilty to possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1)
(2012). The district court sentenced Davis to 51 months of
imprisonment. The Government appealed from the judgment and
Davis filed a cross-appeal of the sentence, challenging the
application of an enhancement under the Sentencing Guidelines
for possession of the firearm in connection with another felony
offense. For the reasons that follow, we vacate and remand for
resentencing.
We review a sentence for reasonableness, applying an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007); see also United States v. Layton, 564 F.3d 330, 335 (4th
Cir. 2009). In reviewing the district court’s calculations
under the Guidelines, “we review the district court’s legal
conclusions de novo and its factual findings for clear error.”
United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)
(internal quotation marks omitted). We will “find clear error
only if, on the entire evidence, we are left with the definite
and firm conviction that a mistake has been committed.” Id. at
631 (internal quotation marks and alteration omitted).
Under the Sentencing Guidelines, the base offense level
applicable to a violation of § 922(g) is 20 if the defendant has
previously sustained a prior conviction for a felony controlled

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substance offense. U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(4)(A) (2012). The Guidelines define a felony
controlled substance offense in part as an offense punishable by
imprisonment for a term exceeding one year that prohibits the
possession of a controlled substance with intent to distribute.
See USSG §§ 2K2.1 cmt. n.1, 4B1.2(b). In calculating the
advisory Guidelines range, the district court determined that
Davis’ 2012 North Carolina conviction for possession with intent
to deliver marijuana was not a felony controlled substance
offense, and declined to apply a base offense level of 20. On
appeal, the Government argues this conclusion was error.
Under North Carolina law, the presumptive range of
imprisonment for Davis’ prior offense was 6 to 17 months of
imprisonment, and he was sentenced to that range. Under North
Carolina’s Justice Reinvestment Act of 2011, however, Davis was
required to be released onto post-release supervision 9 months
before the expiration of the 17-month maximum sentence. The
district court determined that because Davis had to be released
after serving only eight months of incarceration, that offense
was not punishable by a term exceeding one year of imprisonment.
In United States v. Barlow, No. 15-4114, 2015 WL 9269972
(4th Cir. Dec. 21, 2015), we reached a different conclusion. In
Barlow, we held that the term of post-release supervision is
part of the term of imprisonment. Id. at *2-*5. Therefore, we

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conclude that based on our decision in Barlow, the district
court erred in determining that Davis’ prior conviction was not
a felony controlled substance offense.
Accordingly, on the Government’s appeal, we vacate the
sentence and remand for resentencing. As the district court
will have to calculate the Guidelines range in accordance with
our decision, we decline to consider the argument raised in
Davis’ cross-appeal challenging a different Guidelines
calculation at this time. We therefore dismiss Davis’
cross-appeal without prejudice to his raising that issue should
the district court apply the challenged enhancement upon
resentencing. *
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid in the decisional process.
No. 15-4208 VACATED AND REMANDED
No. 15-4237 DISMISSED
* As we decline to consider this issue, we express no
opinion regarding the propriety of application of the Guidelines
enhancement.

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