United States of America v. Davon S. Tooley

Lexington, Kentucky, criminal defense lawyer represented the Defendant charged with for possession of a firearm as a convicted felon.



In April 2022, Tooley's car struck a truck. Tooley asked the truck driver not to call the

police because he had drugs and a firearm in his car, but the driver declined his request and

called the police. Tooley fled on foot but was quickly apprehended. Officers found the gun and

drugs in his car. The following year, officers who were conducting a traffic stop on Tooley's car

observed a device used for smoking drugs. They searched the car and found ammunition, drugs,

drug paraphernalia, and a gun with an extended magazine.



Tooley was charged with two counts of possessing a firearm as a convicted felon, in

violation of 18 U.S.C. § 922(g)(1), and pleaded guilty. The presentence report ("PSR”)

calculated a base offense level of twenty-two for both counts. As relevant here, an offense level

of twenty-two is appropriate for violations of 18 U.S.C. § 922(g)(1) "if (A) the offense involved

a (i) semiautomatic firearm that is capable of accepting a large capacity magazine . . . and (B) the

defendant committed any part of the instant offense subsequent to sustaining one felony

conviction of either a crime of violence or a controlled substance offense.” USSG § 2K2.1(a)(3).

Here, Tooley's offense score of twenty-two was based on his prior Kentucky conviction of

second-degree manslaughter, which the district court determined was a "crime of violence.”

Tooley did not object to this calculation at the time. He was sentenced to a total of 145 months

in prison.





defendant convicted under 18 U.S.C. § 922(g)(1) is eligible for an enhanced base

offense level if the defendant has a previous conviction for a "crime of violence.” USSG

§ 2K2.1(a)(3). In determining the nature of a prior conviction, we "apply a 'categorical'

approach, looking to the statutory definition of the offense and not the particular facts underlying

the conviction.” United States v. Gibbs, 626 F.3d 344, 352 (6th Cir. 2010) (citing Taylor v.

United States, 495 U.S. 575, 600 (1990)).

Vacated and remanded for resentencing.