United States v. Davis, Demetrius , 175 F. App'x 768 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
April 12, 2006
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 03-3988
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 03-CR-351
DEMETRIUS DAVIS,
Defendant-Appellant. James F. Holderman,
Judge.
ORDER
Demetrius Davis was convicted of possessing a gun despite a prior felony
conviction, 18 U.S.C. § 922(g)(1), and sentenced to 120 months’ imprisonment, the
statutory maximum, id. § 924(a)(2). He appealed, raising two arguments that are
relevant here. First, he contended that the district court improperly increased his
sentence based on prior convictions even though no jury had determined the facts of
those convictions beyond a reasonable doubt. But we held that this argument was
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and
explained that Davis had not argued that the district court relied on any
information barred from its consideration by Shepard v. United States, 544 U.S. 13(2005). Second, Davis maintained that the district court erroneously applied the
sentencing guidelines as mandatory. See United States v. Booker, 543 U.S. 220(2005). He was right about this second argument, so we ordered a limited remand
No. 03-3988 Page 2
to find out whether the judge would have imposed the same sentence under an
advisory regime. See United States v. Paladino, 401 F.3d 471, 483–84 (7th Cir.
2005). The judge has since informed us that he would have imposed the same
sentence.
Although his sentence was properly calculated and presumptively
reasonable, see United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), Davis
now maintains that it is unreasonably long. To this end, he insists that his history
of substance abuse compels a lower sentence. Yet the district court considered that
history and decided that the competing interest of protecting the public from the
likelihood of recidivism warranted the sentence that it gave. The choice was the
sentencing court’s, not ours, and there is nothing about this case that renders that
choice unreasonable. See United States v. Williams, 436 F.3d 767, 768–69 (7th Cir.
2006); United States v. Williams, 425 F.3d 478, 480–81 (7th Cir. 2005), cert. denied,
126 S. Ct. 1182 (2006).
Davis’s next contention warrants more discussion. He asserts that the
district court, while answering the narrow question we posed in our limited
remand, improperly cited a police report that said that Davis threatened to kill an
11-year-old child during an armed robbery that resulted in one of his several prior
convictions. The court’s use of this report, Davis says, contravenes our decision in
United States v. Lewis, 405 F.3d 511, 515 (7th Cir. 2005). In Lewis, we held that a
district court erred by classifying a conviction for robbery a “crime of violence”
under U.S.S.G. § 2K2.1(a)(4)(A) in reliance on police affidavits asserting facts to
which Lewis did not admit. Although “robbery always is a ‘crime of violence’,” we
explained, it was error to rely on the report. Lewis, 405 F.3d at 515. “The district
judge,” we wrote, “may well have used the affidavit’s allegations when deciding
where in the range to sentence Lewis, which would misconceive the nature of a
recidivist enhancement. What matters is the fact of conviction, rather than the
facts behind the conviction.” Id.But here, unlike in Lewis’s case, there is no indication that at sentencing the
district court considered the police report. Instead, the court first cited the report
when it was time under Paladino to say whether, in its discretion, it would lower
the sentence, 401 F.3d at 483–84, so the question is not the propriety of the
sentence as originally imposed. Moreover, Lewis left open the possibility that,
although the court could not use the affidavits to determine the application of the
guidelines adjustment, it could use them to otherwise guide its discretion. Lewis,
405 F.3d at 515 (“The United States does not argue that it would have been
appropriate to use these affidavits to decide where in the range to sentence Lewis, if
they were not appropriately used to classify his prior conviction.”). That is
consistent with the long-established law that a sentencing court may look at
materials like this report. See United States v. Hankton, 432 F.3d 779, 789–90 (7th
No. 03-3988 Page 3
Cir. 2005) (noting that sentencing judge may consider virtually unlimited kinds of
evidence relating to the defendant’s entire history, so long as the evidence is
reliable); United States v. Hardamon, 188 F.3d 843, 850 (7th Cir. 1999) (same); see
also United States v. Torres, 977 F.2d 321, 330 & n.4 (7th Cir. 1992) (“We note that
while arrest record alone will not justify a departure, detailed police investigation
reports may supply reliable information of prior similar adult criminal conduct.”)
(citing United States v. Terry, 930 F.2d 542, 545–46 (7th Cir. 1991)). Davis does not
argue that the information was inaccurate. And after all, unlike a case under the
Armed Career Criminal Act, the statutory maximum under the advisory regime
remained unchanged. See United States v. Welch, 429 F.3d 702, 704 (7th Cir. 2005).
Finally, Davis’s Shepard argument is not really a contention that the
sentence is unreasonable in light of the factors under 18 U.S.C. § 3553(a), but
rather that the procedure used by the court to arrive at the sentence was wrong, see
United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1045–46 (7th Cir. 2005), petition
for cert. filed, (Jan. 5, 2006) (No. 05-8615). Such an error may be harmless, see id.,and here it was (if there was any error at all). All that concerns us is that the judge
would have imposed the same sentence under an advisory regime and that the
sentence is reasonable, see Paladino, 401 F.3d at 483–84, so the judgment of the
district court is AFFIRMED.