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United States v. Davison, 98-31136 (1999)

Court: Court of Appeals for the Fifth Circuit Number: 98-31136 Visitors: 62
Filed: Jul. 09, 1999
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-31136 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KIBIBI NAYO DAVISON, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 98-CR-0070-B-ALL - - - - - - - - - - July 7, 1999 Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges. PER CURIAM:* Kibibi Nayo Davison appeals her jury conviction for conspiracy to interfere w
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-31136
                         Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

KIBIBI NAYO DAVISON,

                                           Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                    USDC No. 98-CR-0070-B-ALL
                       - - - - - - - - - -

                            July 7, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Kibibi Nayo Davison appeals her jury conviction for

conspiracy to interfere with commerce by robbery and solicitation

of robbery in violation of 18 U.S.C. §§ 373, 1951.     Her unopposed

motion to supplement the record is GRANTED.

     Davison contends that the district court erred in admitting

evidence of her alleged involvement in a drug conspiracy and

another planned robbery as other acts evidence under Rule 404(b)

of the Federal Rules of Evidence.   Because the evidence of


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                            No. 98-31136
                                 -2-

Davison’s $6000 loan to Terrance Williams and her involvement

with another planned robbery which was not charged was relevant

to her motive and intent in the charged conspiracy to commit

robbery and solicitation of robbery, the district court did not

abuse its discretion in admitting the other acts evidence.     See

United States v. Misher, 
99 F.3d 664
, 670 (5th Cir. 1996); United

States v. Beechum, 
582 F.2d 898
, 911 (5th Cir. 1978)(en banc).

     Davison argues that the district court clearly erred in

increasing her offense level by two points for obstruction of

justice under § 3C1.1 of the U.S. Sentencing Guidelines based on

her alleged perjury at trial.    The district court made sufficient

findings that Davison committed perjury when she testified that

she loaned $6000 to Williams for various personal reasons, based

on the testimony of Aqui Simpson and Nicole Pope presented by the

Government that Davison loaned $6000 to Williams to purchase

heroin and “flip” or double the money for her.    Therefore, the

district court did not clearly err in increasing her offense

level by two points for obstruction of justice based on Davison’s

perjury.    See United States v. Storm, 
36 F.3d 1289
, 1295 (5th

Cir. 1994).

     Davison contends that the district court clearly erred in

increasing her offense level by two points under § 2B3.1(b)(4) of

the Guidelines based on its finding that she and her

coconspirators intended to use physical restraint of the robbery

victim.    Because the Government presented a recorded telephone

conversation between Williams and Simpson in which they

specifically discussed using physical restraint against the
                          No. 98-31136
                               -3-

robbery victim, the district court did not clearly err in holding

that a two-level increase was warranted under § 2B3.1(b)(4)

because she and her coconspirators specifically intended to use

physical restraint against the robbery victim.   See U.S.S.G.

§ 2B3.1(b)(4).

     MOTION GRANTED; JUDGMENT AFFIRMED.

Source:  CourtListener

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