UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DONNA K. DAVIS, DEFENDANT-APPELLANT

11th Cir. | 1989-07-13
No. 88-3794
Before TJOFLAT and VANCE, Circuit Judges, and PITTMAN , Senior District Judge.
878 F.2d 1299 Court of Appeals for the Eleventh Circuit (1989) Positive Treatment
Cited by 23 cases

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Holding

The court held that the district court properly calculated the defendant's base offense level, correctly classified her as a minor participant, and did not err in denying her acceptance of responsibility reduction or downward departure.


Facts & Procedural History

Donna Kay Davis pled guilty to conspiracy to possess with intent to distribute cocaine. She appealed her sentence, challenging the calculation of her …

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Opinion of the Court
PER CURIAM:

PER CURIAM:

Donna Kay Davis pled guilty to one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S. C. §§ 841(a)(1), 841(b)(1)(C) and 846. On appeal she challenges only her sentence. Finding no error, we affirm.

Appellant’s indictment charged her with conspiracy to violate 21 U.S.C. § 841(b)(1)(B), which mandates a term of not less than five and not more than forty years of imprisonment for possession of 500 grams or more of cocaine. Pursuant to the terms of a plea agreement, however, she pled guilty to an information charging a violation of section 841(b)(1)(C), which imposes no mandatory minimum sentence and does not specify a particular quantity of narcotics. She argues that having pled guilty to subsection (C), which she contends implicitly applies to possession of fewer than 500 grams of cocaine, it was improper for the district court to consider the 2009 grams of cocaine that were involved in the offense of conviction in determining her base offense level under the federal sentencing guidelines.

We agree with the sentencing court’s calculation of appellant’s base offense level. The record reveals that appellant was aware at the time she entered into the plea agreement that she could be held responsible for the entire 2009 grams involved in the conspiracy.

Appellant next argues that the sentencing court improperly characterized her as a “minor participant” rather than as a “minimal participant” under the guidelines. The guideline states:

Based on the defendant’s role in the offense, decrease the offense level as follows:
(a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.

(b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels.

Section 3B1.2. The district court’s decision to classify her as a minor participant was based on its conclusion that appellant’s full “understanding of the scope and nature of the enterprise” precluded a designation of minimal participant status. We agree with the district court’s conclusion and hold that the record supports the court’s factual finding that appellant was a minor participant in the scheme.

Appellant also disputes the sentencing court’s failure to award her a two point reduction for acceptance of responsibility under section 3E1.1 of the guidelines. That section permits the court to reduce the defendant’s offense level by two levels “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” Guidelines section 3E1.1. In this case appellant expressed remorse for her actions but refused to implicate other participants in the conspiracy. The court ex pressed its opinion that the question was a close one, but concluded that her continued drug use while out on bond was inconsistent with having accepted responsibility for her criminal conduct. The sentencing court’s determination with respect to a defendant’s acceptance of responsibility “is entitled to great deference on review and should not be disturbed unless it is without foundation.” United States v. Spraggins, 868 F. 2d 1541, 1543 (11th Cir.1989) (quoting Guidelines section 3E1.1, note 1(a), commentary at 3.22). We conclude that there was ample evidence to support the district court’s determination that appellant had not demonstrated an acceptance of responsibility entitling her to a reduced offense level.

Appellant’s final contention is that she was entitled to a downward departure from the sentence specified under the guidelines. The district court considered her request for a departure and declined to grant it. Its decision is not subject to challenge. See 18 U.S.C. § 3742(a).

Accordingly, the judgment of the district court as to appellant’s sentence is AFFIRMED.


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Citator

Cited By (12 total)

  • United States v. Franz, 886 F.2d 973 (7th Cir. 1989)
    …departure from the guidelines sentencing range.” United States v. Fossett, 881 F. 2d 976, 979 (1989) (citing 18 U.S.C. § 3742(a)(3), “allowing defendant to appeal only an upward departure from the guideline range”); see also United States v. Davis, 878 F. 2d 1299, 1301 (11th Cir.1989) (“The district court considered [the appellant’s] request for a departure and declined to grant it. Its decision is not subject to challenge. See 18 U.S.C. § 3742(a).”). In Fossett, the Eleventh Circuit also made clear that, wh…
  • United States v. Colon, 884 F.2d 1550 (2d Cir. 1989)
    …ries, therefore, appellate review is not available. See United States v. Fossett, 881 F. 2d 976 (11th Cir.1989) (Sentencing Reform Act prohibits defendant from appealing sentencing judge’s refusal to make downward departure); United States v. Davis, 878 F. 2d 1299, 1301 (11th Cir.1989) (per curiam) (same). The applicable provision of the Act, Section 3742,2 provides for an appeal by a [*1553] defendant where the claimed error falls within one of four categories defined in Subsection (a). Briefly stated, th…
  • United States v. Lucio Morales, 898 F.2d 99 (9th Cir. 1990)
    …11 (1st Cir.1989); United States v. Draper, 888 F. 2d 1100, 1105 (6th Cir.1989); Franz, 886 F. 2d at 978; United States v. Colon, 884 F. 2d 1550, 1552 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 553, 107 L.Ed.2d 550 (1989); United States v. Davis, 878 F. 2d 1299, 1301 (11th Cir.), cert. denied, — U.S. -, 110 S.Ct. 341, 107 L.Ed.2d 330 (1989).1 See also United States v. Rojas, 868 F. 2d 1409, 1410 (5th Cir.1989) (“A claim that the district court refused to depart from the guidelines and imposed a lawful sent…

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