UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4590

DANIEL PROFIT DAVIS, a/k/a Daniel

Prophet Davis, a/k/a Proffit Davis,

Defendant-Appellant. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

James A. Beaty, Jr., District Judge.

(CR-01-444)

Submitted: January 31, 2003

Decided: March 11, 2003

Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam

opinion. 

COUNSEL

David R. Tanis, DAVID R. TANIS, P.C., Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney,

Robert A.J. Lang, Assistant United States Attorney, Winston-Salem,

North Carolina, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Daniel Profit Davis pled guilty to an information charging that he

possessed 266.1 grams of cocaine base (crack) with intent to distribute in violation of 21 U.S.C. § 841(a), (b)(1)(A) (2000). Davis appeals

his sentence of 175 months imprisonment, challenging a two-level

weapon enhancement, U.S. Sentencing Guidelines Manual

§ 2D1.1(b)(1) (2001), the government’s failure to move for a substantial assistance departure, USSG § 5K1.1, p.s., and the district court’s

decision not to depart downward on the ground that his criminal history was overstated. USSG § 4A1.3, p.s. We affirm in part and dismiss in part. 

Davis was arrested while he was transporting 266.1 grams of crack

and 338.4 grams of cocaine in his car. His passenger, Amos Griffin,

was carrying a firearm. Although Griffin was not charged, Davis

readily admitted that they had pooled their money to buy the drugs

and had made deliveries of drugs earlier that day. He also said that

the gun in Griffin’s possession was one he had given to Griffin for

safekeeping after an argument with its owner, but that he had told

Griffin to return it to the owner and that Griffin had specifically told

him that he had returned the gun to its owner. 

Davis argues that the weapon enhancement was not warranted

because it was not reasonably foreseeable to him that the gun was still

in Griffin’s possession and because Griffin was not charged as a codefendant or identified as a co-conspirator. Davis’ authority for the

latter argument is United States v. Matthews, 168 F.3d 1234, 1248 (3d

Cir. 1999) (holding that enhancement may be given for a gun possessed by someone other than the defendant only if that person is

charged as a co-conspirator). Matthews is not binding authority in this

Circuit, however, and we do not find it persuasive. Under the principle of relevant conduct, a defendant may be held accountable for the

2 UNITED STATES v. DAVIS
conduct of any person involved with him in "a jointly undertaken

criminal activity," whether or nor a conspiracy is charged. USSG

§ 1B1.3(a)(1)(B), comment. (n.2). Davis acknowledged at the sentencing hearing that he and Griffin were engaged in selling drugs

together. 

With respect to Davis’s first argument, we have held that a defendant may be accountable for a gun possessed by another person

involved with him in a joint criminal activity without requiring that

the government establish that the defendant knew the gun was present

because the presence of weapons in such circumstances is reasonably

foreseeable. United States v. Kimberlin, 18 F.3d 1156, 1160 (4th Cir.

1994); United States v. White, 875 F.2d 427, 433 (4th Cir. 1989).

Therefore, the district court did not clearly err in making the enhancement in this case. See United States v. Harris, 128 F.3d 850, 852 (4th

Cir. 1997) (standard of review). 

Next, Davis challenges the government’s decision not to move for

a substantial assistance departure despite his attempt to fully cooperate. When, as here, the plea agreement does not promise a substantial

assistance motion in return for the defendant’s substantial assistance,

the defendant may compel the government to move for a substantial

assistance departure only if he makes a substantial threshold showing

that the government’s decision was based on an unconstitutional

motive or was unrelated to a legitimate government end. Wade v.

United States, 504 U.S. 181, 185-86 (1992). Although Davis did not

allege an unconstitutional motive in the district court, he now suggests that he was denied due process when the government failed to

move for a departure and that he has thus met this test. 

Davis argues that the guidelines violate the separation of powers

doctrine in that the government is given the initial decision as to

whether to file a § 5K1.1 motion, which he views as a usurpation of

a judicial function. However, other circuits have held, persuasively,

that the guideline provision which requires a government motion

before the sentencing court may depart for substantial assistance does

not violate separation of powers. See, e.g., United States v. Spillman,

924 F.2d 721, 724 (7th Cir. 1991). 

Citing United States v. Martin, 25 F.3d 211 (4th Cir. 1994), Davis

also contends that he will not be able to benefit from his preUNITED STATES v. DAVIS 3
sentencing cooperation should it bear fruit in the future because Fed.

R. Crim. P. 35(b) limits a post-sentencing sentence reduction to substantial assistance provided after sentencing. However, Rule 35(b)

was amended in 1998 and now permits the court to consider presentencing assistance in evaluating a Rule 35(b) motion for sentence

reduction filed within one year after sentence is imposed. We conclude that Davis has not shown that the government had an unconstitutional or illegitimate motive for failing to move for a departure. 

Last, Davis contends that the district court should have departed

downward from criminal history category III. The district court’s

decision not to depart is not reviewable on appeal unless the court

mistakenly believed that it lacked authority to depart. United States

v. Matthews, 209 F.3d 338, 352-53 (4th Cir. 2000). There is no doubt

that the district court knew it could depart if it believed a departure

was warranted. Therefore, this claim must be dismissed. 

Accordingly, we affirm the sentence in part and dismiss it in part.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process. 

AFFIRMED IN PART AND DISMISSED IN PART

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