United States v. Davis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4367
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICKY EDWARD DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:06-cr-00063)
Submitted: December 21, 2007 Decided: January 17, 2008
Before NIEMEYER and SHEDD, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William H. Cleaveland, WILLIAM H. CLEAVELAND, P.L.C., Roanoke,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Jean B. Hudson, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky Edward Davis pled guilty to possession of a firearm
by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (2000).
In sentencing Davis, the district court departed upward from the
armed career criminal guideline range of 188-235 months and imposed
a sentence of 260 months imprisonment pursuant to U.S. Sentencing
Guidelines Manual § 4A1.3, p.s. (2006). Davis appeals his
sentence, contending that the sentence is unreasonable. We affirm.
Davis was fifty-one years old when he was sentenced. He
had three criminal history points, but because he had three prior
felony convictions for crimes of violence, he qualified for
sentencing as an armed career criminal. 18 U.S.C.A. § 924(e) (West
2000 & Supp. 2007). Davis’ lawyer argued that 235 months was a
sentence sufficient to punish him adequately for his crimes and to
protect the public. However, the court decided to depart upward to
a sentence of 260 months, the equivalent of a one-level increase in
the offense level. The court explained that the departure was
warranted because criminal history category VI under-represented
the seriousness of Davis’ criminal history and did not adequately
reflect the likelihood that he would commit future crimes. The
court also relied on the failure of the guidelines to take into
account the circumstances leading to Davis’ arrest, which included
“uncharged state conduct of discharging a firearm within a
residence, [and] . . . the defendant barricading himself inside his
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residence,” which could “have resulted in additional victims being
injured or killed, as well as the inherent safety issues involved
with law enforcement officers facing a barricaded suspect.” The
court found that the 260-month sentence “appropriately provides for
the sentencing objectives as cited in 18 U.S.C. Section 3553(a)[*],
specifically the nature and circumstances of the offense, the
seriousness of the offense, the need to provide just punishment,
[and] the need to protect the public from further crimes of the
defendant.”
After United States v. Booker, 543 U.S. 220 (2005), a
sentence is reviewed for reasonableness. United States v.
Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006). When reviewing a departure, the appeals court
considers “whether the sentencing court acted reasonably both with
respect to its decision to impose such a sentence and with respect
to the extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).
A district court may depart upward based on the
inadequacy of the defendant’s criminal history if “reliable
information indicates that the defendant’s criminal history
category substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant
will commit other crimes . . . .” USSG § 4A1.3(a)(1). However,
*
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).
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the defendant’s arrest record “shall not be considered for purposes
of an upward departure under this policy statement.” USSG
§ 4A1.3(a)(3) (emphasis added).
Here, the court emphasized Davis’ long arrest record.
However, the court properly relied on the relatively lenient
sentences Davis had previously received for robbery, two unlawful
wounding convictions, and taking indecent liberties with a child.
The court could also consider the uncharged conduct leading to his
arrest on the current federal firearm charge and the sentencing
goals and factors set out in § 3553(a). The court’s decision to
depart was not procedurally or substantively unreasonable,
particularly in light of the Supreme Court’s recent holding in
Gall v. United States, __ S. Ct. __, 2007 WL 4292116, at *7, *13
(Dec. 10, 2007) (No. 06-7949), that appellate courts should review
sentences outside the advisory guidelines range for abuse of
discretion only.
In addition, the extent of the departure was reasonable.
The district court did not explicitly follow the procedure provided
in § 4A1.3(a)(4)(B) for departures above category VI, which
requires the court to move to higher offense levels until it finds
one that yields an adequate guideline range, but an increase of one
offense level would produce a guideline range of 210-262 months.
The 260-month sentence was within this range.
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We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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