United States Court of Appeals

Fifth Circuit

FILED

January 31, 2007

Charles R. Fulbruge III

Clerk

In the United States Court of Appeals

for the Fifth Circuit

No. 05-10754

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

SHANNON DEWAYNE DAVIS,

Defendant – Appellant.

Appeal from the United States District Court

for the Northern District of Texas

No. 4:04-CR-00199

Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Shannon DeWayne Davis pleaded guilty to distributing crack cocaine in violation of

21 U.S.C. § 841(a)(1) and appeals the sentence imposed. The question before us is the

quantity for which Davis can be held accountable for sentencing purposes. We conclude

that, under section 2D1.1 of the United States Sentencing Guidelines, for purposes of

calculating the advisory sentencing range, quantities of a non-controlled substance should

not be included to determine the offense level if the defendant meets his burden of

establishing that he either did not have the intent to deliver or did not have the capability of
1UNITED STATES SENTENCING GUIDELINES MANUAL § 2D1.1(a)(3), (c) (2004) (U.S.S.G.).

2

See id. cmt. n.12 (“Types and quantities of drugs not specified in the count of convictionmay

be considered in determining the offense level [as relevant conduct].”).

3The PSR does not indicate the source of the remaining .01 grams of crack cocaine attributed

to Davisin the total drug calculation but that negligible amount is not contested on appeal and would

not impact the result in this case.

2

delivering the agreed-upon quantity of the controlled substance.1 Because the facts are

undisputed that Davis intended to deliver a non-controlled substance rather than the 85.05

grams of crack cocaine he agreed to deliver, we vacate Davis’s sentence and remand for

resentencing.

I

Davis was indicted on four counts of distributing crack cocaine in violation of 21

U.S.C. § 841(a)(1), but he pleaded guilty to a single count involving 21.6 grams of crack

cocaine pursuant to a written plea agreement. In the pretrial sentencing report (PSR), the

probation officer concluded that Davis should be held responsible for distributing 156.96

grams.2 The drug quantity calculation included 55.6 net grams of crack cocaine actually

delivered to a confidential informant in the fourindicted drug transactions, an additional 16.3

grams that Davis agreed to deliver in one of those drug transactions but did not because he

intentionally “shorted” the amount of the drug at the time of delivery, and 85.05 grams that

Davis agreed to sell to the confidential informant as part of a fifth, unindicted transaction.3

The inclusion of 85.05 grams is the focus of this appeal.

It is undisputed that Davis agreed to sell the confidential informant 85.05 grams. The
4One ounce is equivalent to approximately 28.3495 grams; accordingly, three ounces is

approximately 85.0485 grams.

3

informant arrived at the appointed delivery location, which was a grocery store parking lot,

as did a car containing Davis and three other occupants. The informant called Davis to let

him know he was at the agreed location ready to conclude the transaction, and Davis said he

was sending someone else to make the delivery. As DEA agents watched a person believed

to be Davis’s brother walk around the parking lot, the informant moved to another location

and again called Davis to tell him he had moved since no one had approached him. He also

advised Davis of his new location. The DEA agents observed the man thought to be Davis’s

brother return to the vehicle he had exited, and the agents followed that vehicle as it

proceeded to an apartment complex located on the same street as the grocery store. Upon

arrival at the apartment complex, the four occupants of the vehicle saw police squad cars

nearby and fled on foot. Davis and two others were apprehended and arrested, but the fourth

person escaped. Two baggies containing approximately 81 grams of a non-controlled, offwhite substance were found in the vehicle Davis and his companions left behind.

In the PSR, which includes its addendum, the probation officer recited the foregoing

facts and concluded that Davis “was attempting to ‘rip-off’ the [confidential informant] by

selling him3 ounces of a non-controlled substance in place of crack cocaine.”4 The PSR also

concluded that based on prior transactions and historical information, Davis was “capable

of producing 3 ounces of crack.” On the basis of this latter conclusion, the PSR

recommended that Davis be held accountable for the 85.05 grams he agreed to deliver.
5The term “counterfeit substance” is defined in 21 U.S.C. § 802(7) as:

a controlled substance which, or the container or labeling of which, without

authorization, bears the trademark, trade name, or other identifying mark, imprint,

number, or device, or anylikenessthereof, of a manufacturer, distributor, or dispenser

other than the person or persons who in fact manufactured, distributed, or dispensed

such substance and which thereby falsely purports or isrepresented to be the product

of, or to have been distributed by, such other manufacturer, distributor, or dispenser.

6

Id.

4

Davis filed written objections to the PSR, arguing that the 85.05 grams of crack

cocaine he agreed to deliver to the confidential informant should not be included in the drug

calculation because the substance he attempted to deliver was neither a controlled substance

nor a counterfeit drug as defined in 21 U.S.C. § 802.5 Davis cited note 12 to section 2D1.1

of the Sentencing Guidelines, which says the agreed-upon quantity is not controlling if “the

sale is completed and the amount delivered more accurately reflectsthe scale of the offense,”

and which directs a district court to “exclude from the offense level determination the

amount of controlled substance that the defendant establishes that [he] did not intend to

provide or purchase or was not reasonably capable of providing or purchasing.”6

At the sentencing hearing, Davis again objected, adding that the 85.05 grams should

not be included in the drug quantity calculation because the undisputed facts established that

he did not intend to deliver that amount of a controlled substance. In overruling the

objection, the district court concluded that (1) Davis had the burden to disprove intent and

capability, (2) the probation officer determined Davis was capable of producing the

agreed-upon quantity of crack cocaine, and (3) there was no contrary evidence. The district
5

court explicitly adopted the findings and conclusions in the PSR as modified and

supplemented by the addendum. The PSR calculated the advisory sentencing range to be 210

to 262 months based on a total offense level of 33 and a criminal history of five under the

Guidelines. The PSR stated that an upward departure might be appropriate on the basis that

Davis’s criminal history category did not adequately reflect the seriousness of his criminal

history or the likelihood that he would commit other crimes. After determining that an

upward departure was appropriate for the reasons stated in the PSR, the district court

sentenced Davis to 293 months in prison and five years of supervised release.

Davis appealsthe district court’s drug quantity calculation to the extent the court held

him accountable for the 85.05 grams of crack cocaine he agreed to deliver to the confidential

informant. Davis does not otherwise challenge the district court’s drug quantity calculation,

the upward departure, or any other aspect of his sentence.

II

We are called upon to construe and apply note 12 to U.S.S.G. § 2D1.1, which states

in pertinent part:

Types and quantities of drugs not specified in the count of conviction may be

considered in determining the offense level. . . .

In an offense involving an agreement to sell a controlled substance, the

agreed-upon quantity of the controlled substance shall be used to determine

the offense level unless the sale is completed and the amount delivered more

accurately reflects the scale of the offense. . . . If, however, the defendant

establishesthat the defendant did not intend to provide or purchase, or was not

reasonably capable of providing or purchasing, the agreed-upon quantity ofthe

controlled substance, the court shall exclude from the offense level

determination the amount of controlled substance that the defendant
7

Id. (emphasis added).

8

Stinson v. United States, 508 U.S. 36, 38 (1993) (“[C]ommentary in the Guidelines Manual

that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal

statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”).

9

See United States v. Mendez-Villa, 346 F.3d 568, 570 (5th Cir. 2003) (applying a plain

meaning approach to interpreting the federal sentencing guidelines and commentary).

10See United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).

11U.S.S.G. § 2D1.1 cmt. n.12 (2004).

6

establishesthat the defendant did not intend to provide or purchase or was not

reasonably capable of providing or purchasing.7

We regard the Guidelines commentary as authoritative,8and when interpreting it, we apply

the plain, ordinary and commonly understood meaning of the words.9 The proper

construction of the Guidelines is an issue of law that we review de novo.

10

A

We first consider Davis’s contention that the district court erred in concluding that the

85.05 grams could be included in the total drug quantity as long as Davis had the capability

of delivering that amount, even if Davis did not intend to deliver that quantity. We agree

with Davis that the district court failed to give effect to the disjunctive language in note 12,

which provides:

If, however, the defendant establishes that the defendant did not intend to

provide or purchase, or was notreasonably capable of providing or purchasing,

the agreed-upon quantity of the controlled substance, the court shall exclude

from the offense level determination the amount of controlled substance that

the defendant establishes that the defendant did not intend to provide or

purchase or was not reasonably capable of providing or purchasing.11
12U.S.S.G. § 2D1.1 cmt. n.12 (1994).

13See U.S.S.G. app. C, vol. 1, amend. 518 at 431 (1997).

14See generally United States v. Cruz-Mendoza, 147 F.3d 1069, 1072-73 (9th Cir. 1998),

amended on other grounds, 163 F.3d 1149 (9th Cir. 1998) (concluding that the amendment omitting

the conjunctive language and adding the disjunctive language was substantive, not merely clarifying,

and thus could not be applied on collateral review of the defendant’s sentence).

7

Prior to amendments that became effective in 1995, note 12 included the following

provision:

In an offense involving negotiation to traffic in a controlled substance, the

weight under negotiation in an uncompleted distribution shall be used to

calculate the applicable amount. However, where the court finds that the

defendant did not intend to produce and was not reasonably capable of

producing the negotiated amount, the court shall exclude from the guideline

calculation the amount that itfindsthe defendant did not intend to produce and

was not reasonably capable of producing.12

This provision was deleted in its entirety. The final paragraph of note 12 in the Guidelines

effective November 1, 1995 replaced it.13 The amendment omitted conjunctive language and

added disjunctive language.14 Accordingly, in applying note 12, a defendant is entitled to

have amounts he or she did not intend to provide or purchase excluded from the quantity

calculation regardless of whether the amount could have been provided or purchased.

We therefore turn to Davis’s intent.

B

As an initial matter, Davis argues that he has only the burden of production with

regard to the exclusionary provision in the final paragraph of note 12 to section 2D1.1 of the

Guidelines and that the burden of persuasion regarding the drug quantity remains with the
15Cf. United States v. Posada-Rios, 158 F.3d 832, 878-79 (5th Cir. 1998) (under an earlier

version of note 12, affirming the district court’s drug calculation because there was “no evidence”

that the defendant lacked intent or capability but not considering whether the defendant had a burden

of production or persuasion).

16United States v. Mora, 994 F.2d 1129, 1142 n.15 (5th Cir. 1993) (noting a circuit split on

the burden of proof issue under an earlier version of note 12, but not deciding the question);see also

United States v. Raven, 39 F.3d 428, 434-35 (3d Cir. 1994) (the defendant bears only a burden of

production regarding intent and capability); United States v. Tillman, 8 F.3d 17, 19 (11th Cir. 1993)

(Government bears the burden of persuasion); United States v. Rodriguez, 975 F.2d 999, 1008 (3d

Cir. 1992) (implicitly charging the Government with the burden of persuasion); United States v.

Richardson, 939 F.2d 135, 142-43 (4th Cir. 1991) (not explicitly discussing the burden of proof, but

vacating the defendant’ssentence because no evidence of ability in the record); United States v. Ruiz,

932 F.2d 1174, 1183-84 (7th Cir. 1991) (the Government bears the burden of persuasion); United

States v. Bradley, 917 F.2d 601, 605 (1st Cir. 1990) (the Government bears the burden of

persuasion); United States v. Smiley, 997 F.2d 475, 480-81 n.7 (8th Cir. 1993) (suggesting that the

defendant bears the burden of persuasion); United States v. Barnes, 993 F.2d 680, 683-84 (9th Cir.

1993) (defendant bearsthe burden of persuasion); United States v. Christian, 942 F.2d 363, 368 (6th

Cir. 1991) (defendant bears the burden of persuasion).

17U.S.S.G. app. C, vol. 1, amend. 518 at 433 (1997).

18Compare United States v. Hazut, 140 F.3d 187, 192 (2d Cir. 1998) (the defendant bears

only a burden of production) with United States v. Barnes, 244 F.3d 172, 177 & n.6 (1st Cir. 2001)

(defendant bears a burden of persuasion); United States v. Munoz, 233 F.3d 410, 415 (6th Cir. 2000)

(same); United States v. Wash, 231 F.3d 366, 373 (7th Cir. 2000) (same); United States v.

8

Government. This court has not had occasion to decide this issue,15although in applying the

iteration of note 12 in effect before 1995, we noted a split among the circuits.16 Although

the Commission expressly observed in stating its reasons for amending note 12 that

“[d]isputes over the interpretation of this application note have produced much litigation,”17

interpretations of note 12 have diverged even after the amendments. At least one circuit has

concluded that the defendant has only the burden of production, while other circuits have

held that a defendant bears the burden of production and persuasion with respect to the

exclusionary provision.18
Maldonado, No. 99-3334, 2000 WL 825717 at *3 (10thCir.June 26, 2000) (same);Brown v. United

States, 169 F.3d 531, 534-35 (8th Cir. 1999) (same); United States v. Lopes-Montes, 165 F.3d 730,

731 (9th Cir. 1999) (same).

19U.S.S.G. § 2D1.1 cmt. n.12 (2004).

9

The language of note 12 states explicitly that if “the defendant establishes” he or she

had no intent to provide or purchase the agreed-upon quantity of the controlled substance,

the district court shall exclude the amount “that the defendant establishes that the defendant

did not intend to provide or purchase.”19 We accordingly join a majority of the circuits and

conclude that the defendant bears the burden of persuasion.

In this case, the district court adopted the findings and conclusions in the PSR as

modified and supplemented by the addendum. As discussed earlier, the probation officer

concluded in the PSR that Davis intended to “‘rip off’ the confidential informant by selling

him 3 ounces of a non-controlled substance in place of crack cocaine.” This undisputed

finding of fact establishes as a matter of law that Davis did not intend to provide the agreed

amount of crack cocaine.

The PSR’s additionalfinding, also adopted by the district court, that Davis could have

provided the agreed amount based on past conduct and historical evidence is not controlling.

There is no indication that Davis intended to provide any crack cocaine as agreed, even if he

could have. The unchallenged finding of fact regarding Davis’s intent negates any

reasonable inference that Davis might have provided the agreed amount atsome unspecified

future date under an unspecified set of circumstances.

Since Davis never intended to supply the agreed quantity of a controlled substance,
20See United States v. Lombardi, 138 F.3d 559, 562 (5th Cir. 1998) (the defendant agreed to

provide 2,000 pounds of marijuana in two or more installments over the span of a week but was

arrested after delivering the first 877 pounds).

21See United States v. Burke, 431 F.3d 883, 886 (5th Cir. 2005) (noting that there can be no

conviction for possession or sale of illegal drugs unlessthe defendant sells or possesses actual drugs,

but that there can be a conviction for conspiracy to aid in the distribution of drugs if the requisite

intent is present).

2218 U.S.C. § 3742(f)(1) (2000 & Supp. IV).

23United States v. Booker, 543 U.S. 220 (2005).

10

this is not a situation in which the defendant intended to provide a certain amount of

controlled substance but was arrested before he could do so.20 Nor are we faced with a

challenge to a conviction, as distinguished from issues presented in determining the drug

quantity for sentencing purposes.21

III

Davis preserved his complaintregarding the inclusion of 85.05 grams of crack cocaine

in the drug quantity calculation. Without that amount, the drug quantity would have been

71.91 grams, which would result in an advisory Guideline’s sentencing range of 168 to 210

months rather than the 210 to 262 months range found by the district court. The district

court upwardly departed from the incorrectly calculated advisory range and sentenced Davis

to 293 months. 

The inquiry under 18 U.S.C. § 3742(f)(1) is whether Davis’s sentence “was

imposed . . . as a result of an incorrect application of the sentencing guidelines.”22In a

different but analogous context, the United States Supreme Court held, pre-Booker,

23 that if
24Williams v. United States, 503 U.S. 193, 203 (1992).

25Id.

26United States v. Duhon, 440 F.3d 711, 716 (5th Cir. 2006); see also United States v. TzepMejia, 461 F.3d 522, 526 (5th Cir. 2006) (“If the district court makes an error in an application of

the Guidelines, we vacate the resulting sentence without reaching the sentence’s ultimate

reasonableness. This is so because Booker did not excise 18 U.S.C. § 3742(f).”) (citations omitted);

United States v. Jones, 444 F.3d 430, 439 (5th Cir. 2006) (“The remedial opinion in Booker did not

sever or excise 18 U.S.C. § 3742(f)(3), which directs that a court of appeals ‘shall affirm [a]

sentence’ unless it is ‘described in paragraph (1) or (2)’ of [3742(f)].”).

27Tzep-Mejia, 461 F.3d at 525 (citing United States v. Smith, 440 F.3d 704, 707 (5th Cir.

2006)).

11

a district court intends to depart from the Guidelines range, “a sentence is imposed ‘as a

result of’ a misapplication of the Guidelines if the sentence would have been different but

for the district court’s error.”24 The Supreme Court explained that “once the court of appeals

has decided that the district court misapplied the Guidelines, a remand is appropriate unless

the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that

the error did not affect the district court’s selection of the sentence imposed.”25 We have

held that Booker did not excise section 3742(f)(1), and that we “vacate a sentence imposed

‘as a result of’ a Guidelines error withoutreaching the sentence’s ultimate reasonableness.”26

This circuit has described sentences asfalling into “three types. . . under the advisory

sentencing regime.”27 They are “(1) a sentence within a properly calculated Guideline range;

(2) a sentence that includes an upward or downward departure as allowed by the Guidelines,

which sentence is also a Guidelinessentence; or (3) a non-Guideline sentence which is either

higher or lower than the relevant Guideline sentence.” Even when imposing a non-Guideline
28Id. at 526 (emphasis omitted); see also Smith, 440 F.3d at 707; United States v. AngelesMendoza, 407 F.3d 742, 746 (5th Cir. 2005).

29See Tzep-Mejia, 461 F.3d at 526.

30At the sentencing hearing, the district court stated:

I’m going to upwardly depart. I’m going to order that the defendant be

committed to the custody of the Bureau of Prisons to serve a term of 293 months.

Of course, the guideline range is only advisory, and the courts are now obligated to

take into account all of the factors contemplated in 18 U.S.C. [§] 3553(a). I suppose

the Court always has been, but it now becomes more of a focus on the sentence, the

factors that are expressed in that. In order to adequately address those factors the

Court has concluded that a sentence of 293 months is required.

If viewed from a standpoint of a departure under the guidelines, referring to

the guideline provisions, the departure is justified by U.S.S.G. 4A1.3(a)(1). There’s

reliable information that indicates that the defendant’s criminal history category

substantiallyunder-representsthe seriousness ofhis criminalhistoryand the likelihood

that he will commit other crimes. Consequently, an upward departure is warranted.

* * * 

[T]he Court concludes that his criminal history category of five does not

adequately represent the seriousness of his criminal history or the likelihood that he

will commit future crimes.

Pursuant to that section of the guidelines, if the case law applicable before the

recent Supreme Court decisions were to be considered, the Court would determine

12

sentence, “the first step ordinarily requires that the district court determine a properly

calculated Guideline sentence.”28 If a district court imposes a non-Guideline sentence, and

the sentence did not “result from” any error in applying the Guidelines or calculating the

advisory range, section 3742(f)(1) does not require a vacatur of the sentence even if there

was a Guideline error.29

It is unclear whether the district court imposed a Guideline or a non-Guideline

sentence.30 In either event, we cannot say, based on the record before us, that the district
the extent of the departure by using as a reference the criminal history category

applicable to the defendants whose criminal history or likelihood to recidivate most

closely resembles that of the defendant. If the Court were to make such a

determination, the Court would find that the defendant’s criminal history category

most closely resembles that of a criminal history category six and, therefore, for

purposes of upward departure the Court looks at a range of 235 to 293 months and

is imposing a sentence at the top of that range. 

13

court’s error in calculating the applicable advisory Guidelines offense level did not affect the

district court’s selection of the 293-month sentence. The district court reached this sentence

by applying a criminal history category six rather than a criminal history category five to the

improperly calculated sentencing range, and the improperly calculated sentencing range thus

served as a reference point for the upward departure. Accordingly, the sentence must be

vacated.

* * * * *

For the foregoing reasons, we AFFIRM Davis’s conviction, VACATE Davis’s

sentence, and REMAND this case to the district court for resentencing.