United States v. Crisconi Davis, Jr. , 714 F. App'x 614 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1302
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Crisconi E. Davis, Jr.
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 12, 2018
Filed: March 13, 2018
[Unpublished]
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Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
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PER CURIAM.
Crisconi E. Davis, Jr. pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court1 sentenced him
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The Honorable David Gregory Kays, Chief Judge, United States District Court
for the Western District of Missouri.
to 71 months’ imprisonment. He appeals. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.
Davis believes the 34-month upward variance (guidelines range 30 to 37
months) was unreasonable because “the court rejected the guidelines based on the
overriding consideration that Mr Davis’ ‘guidelines come out at a lesser sentence
than’ his longest prior sentence of four years.” Davis contends this “stair-step
sentencing rule was improperly given dispositive weight at the expense of the §
3553(a) factors.”
“This court reviews sentences in two steps: first, for significant procedural
error; and if there is none, for substantive reasonableness.” United States v. Williams,
624 F.3d 889, 896 (8th Cir. 2010). This court reviews sentences “‘whether inside or
outside of the Guidelines range,’ under ‘a deferential abuse-of-discretion standard.’”
United States v. Hummingbird, 743 F.3d 636, 637 (8th Cir. 2014), quoting United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).
Davis’s belief is without merit. The court thoroughly considered and discussed
the § 3553(a) factors:
So let me go through the process here with you. The guidelines are just
one step, and guidelines don’t control how we determine punishment.
It’s one of the things we look at and consider.
The other things we consider are what’s called factors under a statute
called 18 U.S.C. 3553(a) which are things your attorney has discussed.
And I have considered all those factors, but let me go through the ones
I think are especially relevant in this case.
The nature of the crime. It’s a concerning crime. It’s somewhat similar
behavior that we’ve seen in the past from you, Mr. Davis. Truck is
reported as stolen. Officers observed that truck occupied, one person.
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As officers approached the truck to conduct a vehicle check, the driver
moved from the driver’s seat to the passenger’s seat, exited the truck and
fled on foot. During a foot pursuit, officers observed you reach into
your waistband with your right hand. And after a brief foot chase, they
caught you.
That’s—so that says a number of things, right? First off, you’re a
convicted felon, and you shouldn’t have a gun. . . . But also it really
bears—illustrates this issue about respect for the law, right? Which I
keep a little list of the crimes here. You have eight assaults in your
criminal history, which is really—that’s the glaring part, because the
assaultive behavior is behavior that must be addressed. And if it’s in
your history, that’s very concerning to the Court.
Resisting or obstructing. You have three priors which shows, you know,
disrespect for law enforcement related to your criminal history.
You have three prior felonies. You have five driving while revokes,
driving while suspendeds, which then again goes to respect for the law,
which while these are misdemeanors, these have serious effect on people
when they run into a driver who’s driving careless, who doesn’t have
insurance or doesn’t have a registration. If you don’t—if you’re not
good with the state of Missouri, insurance doesn’t cover you if you hit
somebody.
So these are all offenses, mainly a lot of them that go to respect for the
law and assaults. And that respect for the law is a factor, so that’s
what—we look at.
Also, we look at Mr. Davis’ amenability to supervision. How can you
be supervised? How well does that work? And as you recall, and as
illustrated in paragraph 25, paragraph—let’s see—paragraph 38 and
paragraph 47, this really never worked out well. You’ve been—you’ve
been considered an absconder for leaving supervision. Usually you’ve
been revoked or in revoked status on each of these opportunities that
you had. That’s concerning too, Mr. Davis.
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And, you know, you got a five-year, a five-year and a two-year sentence.
You’re not going to get less time the more felonies you commit because
that goes to deterrence in my mind, so it’s not going to be a sentence
within the guidelines because that would give you less time for a new
felony, which the government does nutty things, but that’s not how this
is going to work. You’ve got to get more time to have a deterrent effect
on a sentence, and that’s part of the guideline—that’s part of the factors
too. So let’s talk—and your history I’m talking about now, the sporadic
employment concerns me.
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The need to protect the public. You know, Mr. Davis, people don’t like
when I say that, but that is an important consideration, sir, in looking at
your criminal history. And that’s also the need that the sentence imposed
reflects the seriousness of the offense, promotes respect for the law.
The court based the sentence on the § 3553(a) factors including Davis’s prior
convictions, poor performance on supervision, sporadic employment record, and
violent tendencies. The court’s consideration of prior sentences in the context of
deterrence was proper. See United States v. Mendez, 685 F.3d 769, 772 (8th Cir.
2012) (recognizing “the failure of prior shorter terms of incarceration to deter
additional offenses” as a valid basis for an upward sentence); United States v.
Walking Eagle, 553 F.3d 654, 657 (8th Cir. 2009) (holding that, in considering
whether “a defendant may commit other crimes,” a court may conclude that prior
“leniency has not been effective”).
The district court did not abuse its discretion in varying upward.
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The judgment is affirmed.
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