United States v. Fredrick Davis ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-1283
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United States of America
Plaintiff - Appellant
v.
Fredrick Miles Davis
Defendant - Appellee
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Appeal from United States District Court
for the District of North Dakota - Western
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Submitted: October 22, 2021
Filed: December 20, 2021
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Before LOKEN, WOLLMAN, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Fredrick M. Davis pled guilty to attempted coercion or enticement of a minor
in violation of 18 U.S.C. § 2422(a). The district court1 sentenced him to time served
and 120 months’ supervised release, including one year of home confinement. The
United States appeals the below-guidelines sentence.
1
The Honorable Daniel M. Traynor, District Judge for the District of North
Dakota.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
In 2019 Davis contacted “Addyson” and “Sara” online. They identified
themselves as 14-year-old girls, but were actually personas of undercover law
enforcement. Davis asked them to meet with him in a hotel in Dickinson, North
Dakota. He sent them sexually explicit messages and a graphic picture, and asked
them to send him explicit pictures.
Davis was arrested at the North Dakota hotel where he intended to meet the
girls. Under a pretrial agreement, Davis pled guilty to one charge—attempted
coercion or enticement of a minor. His advisory guideline range was 46-57 months.
As required by the pretrial agreement, the parties jointly recommended a 60-month
sentence and five years of supervised release. The district court sentenced Davis to
time served (two months) and 120 months of supervised release, including one year
of home confinement, participation in sex offender treatment, and registration as a
sex offender.
The government acknowledges there was no procedural error in this case.
This court “consider[s] the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51
(2007). “[I]t will be the unusual case when we reverse a district court sentence—
whether within, above, or below the applicable Guidelines range—as substantively
unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en
banc). If a sentence is outside the guidelines range, as it is here, this court “may
consider the extent of the deviation, but must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” Gall, 552 U.S. at 51.
“A district court abuses its discretion and imposes a substantively
unreasonable sentence when it ‘(1) fails to consider a relevant factor that should have
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received significant weight; (2) gives significant weight to an improper or irrelevant
factor; or (3) considers only the appropriate factors but in weighing those factors
commits a clear error of judgment.’” United States v. Red Cloud, 966 F.3d 886, 888
(8th Cir. 2020), quoting Feemster, 572 F.3d at 461.
This court can review the district court’s statement of reasons to ensure it
considered the parties’ arguments and had a reasoned basis for its sentence. Rita v.
United States, 551 U.S. 338, 356 (2007); United States v. Morris, 918 F.3d 595,
597-98 (8th Cir. 2019).
In its statement of reasons, the district court described why it varied below the
guidelines:
Upon its own motion, the Court finds that a downward
variance or non-Guideline sentence is appropriate in this
case. The Defendant, who is 55 years old, has a criminal
history category of I, based upon zero (0) criminal history
points. He honorably served, with commendations, in the
United States Marine Corps for twenty years. Since
January 2020, the Defendant has been on pretrial
supervised release without incident and has been
successfully employed on a full-time basis. He has
expressed deep remorse for the offense conduct in this
case.
The government objected to the sentence for failing to afford adequate
deterrent effect (the district court noted the objection). But a district court has “wide
latitude” to weigh factors, and it “may give some factors less weight than a [party]
prefers or more weight to other factors, but that alone does not justify reversal.”
United States v. Brown, 992 F.3d 665, 673–74 (8th Cir. 2021). In its written
statement of reasons, the district court did acknowledge the need to afford adequate
deterrence to criminal conduct. It chose to give other factors more weight than the
deterrence factor, which is not a clear error of judgment.
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The government also argues that the district court erred in weighing the Post
Conviction Risk Assessment. The record shows the district court considered the
PCRA in conjunction with other factors. In fact, at sentencing, the court asked the
prosecutor: “do you agree with the assessment in the PSR that the risk level is very
low for this offender to reoffend?” He replied, “I do agree, yes, Your Honor.” It is
within the district court’s discretion to weigh such factors.
The government contends Davis’s commendable 20-year military career and
his exemplary behavior on pretrial release are not “sufficiently compelling” to justify
his below-guidelines sentence. See Gall, 552 U.S. at 50. But, this court “may not
require ‘“extraordinary” circumstances to justify a sentence outside the
Guidelines.’” Feemster, 572 F.3d at 462, quoting Gall, 552 U.S. at 47. The district
court’s rationale for granting the variance does not need to be extraordinary, only
substantively reasonable.
18 U.S.C. § 3553(a)(1) instructs the sentencer to consider a defendant’s
history and characteristics. In his meritorious military career—half his adult life—
he earned numerous awards and commendations, including the Combat Action
Ribbon and recognitions for service in Iraq and Somalia. Cf. U.S.S.G. § 5H1.11
(“Military service may be relevant in determining whether a departure is warranted,
if the military service, individually or in combination with other offender
characteristics, is present to an unusual degree and distinguishes the case from the
typical cases covered by the guidelines.”). He also did more than simply staying out
of trouble while on pretrial release: he acknowledged his conduct, expressed
remorse, sought ongoing treatment for his service-related PTSD, and got and
maintained a job.
The government asserts that the district court erred in essentially double-
counting Davis’s lack of criminal history and other characteristics already factored
into his guidelines range. This court has rejected this assertion many times. The
district court may consider factors already weighed in the calculation of the
guidelines range. United States v. Chase, 560 F.3d 828, 831 (8th Cir. 2009). Factors
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that contribute to a low criminal history score or offense level may also weigh into
a downward variance—just as aggravating factors already accounted for in a
guidelines range may weigh into an upward variance. See, e.g., United States v.
Stoner, 795 F.3d 883, 885 (8th Cir. 2015), citing United States v. David, 682 F.3d
1074, 1077 (8th Cir. 2012).
The government argues that this court has affirmed higher sentences than
Davis’s for similar conduct. That “a different sentence was appropriate is
insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51. Each party
lists sentences of first-time sexual offenders in North Dakota that appear to support
their position. But a district court “must make an individualized assessment based
on the facts presented.” Gall, 552 U.S. at 39.
The ten years of supervised release, one year of home confinement, and other
restrictions here are a substantial punishment. “[T]he Guidelines are only one of the
factors to consider when imposing a sentence, and § 3553(a)(3) directs the judge to
consider sentences other than imprisonment.” Gall, 552 U.S. at 59. “[C]ustodial
sentences are qualitatively more severe than probationary sentences of equivalent
terms,” but “[o]ffenders on probation are nonetheless subject to several standard
conditions that substantially restrict their liberty.” Id. at 48. In Gall itself, the Court
reversed for not giving due deference to the district court’s “reasoned and reasonable
decision that the § 3553(a) factors, on the whole, justified the sentence” of probation.
Id. at 59-60. See also United States v. McFarlin, 535 F.3d 808, 810, 812 (8th Cir.
2008).
Finally, the government argues that this case is similar to two others this court
has reversed. See United States v. Kane, 639 F.3d 1121 (8th Cir. 2011); United
States v. Dautovic, 763 F.3d 927 (8th Cir. 2014). The facts in these cases are not
similar to Davis’s, involving significantly worse abuse of actual victims, and denial
of responsibility, even perjury. Here, in contrast, the district court did not overlook
any relevant factors. Davis’s sentence, compared against those reversed by this
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court, is not so “unreasonably lenient” as to warrant overturning it. See Kane, 639
F.3d at 1136.
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The judgment is affirmed.
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