United States v. Durius Davis
Opinion
Durius Davis pleaded guilty to unlawful possession of a firearm as a previously convicted felon.
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In his plea agreement, Davis stipulated to a minimum base offense level of 20 but acknowledged that a higher base offense level ultimately could apply due to prior convictions. The presentence report recommended a base offense level of 24. The report determined that Davis's 2010 Iowa conviction for willful injury,
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After applying adjustments, the court arrived at a total offense level of 23. Davis's criminal history category was IV, so his advisory sentencing guideline range before departures was 70-87 months' imprisonment. The court then granted a downward departure of twenty percent, which yielded a guideline range of 56-70 months, and sentenced Davis to 63 months' imprisonment.
Davis first argues that the district court erred in calculating the offense level because his 2011 Iowa robbery conviction is not a "crime of violence" under USSG § 4B1.2(a). We need not address this claim because the district court made an alternative determination that renders the issue moot. The court declared that Davis should receive a 63-month sentence under
In pronouncing sentence, the court stated:
[E]ven if the two convictions that were scored as predicates to the base offense level are ultimately found in the future not to be appropriate crimes of violence for purposes of the enhancement to the base offense level, the Court's decision on ultimate disposition would be absolutely the same after a careful consideration of the 3553(a) factors. And I have considered each and every 3553(a) factor in Title 18. Even though I may not discuss each and every one of them in detail, rest assured, each has been very carefully considered.
The court proceeded to explain the 63-month sentence by discussing several appropriate considerations under § 3553(a) : Davis's "extremely serious" criminal history, high likelihood of recidivism, poor performance during periods of correctional supervision, substance abuse history, lack of lawful employment, prior gang membership, and the danger he posed to the community.
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Davis contends that the district court failed to consider the alternative guideline range that would have applied without the two predicate crimes of violence. With a base offense level of 20, Davis's total offense level would have been 19, and his alternative guideline range before departures would have been 46-57 months. If the court applied the same twenty-percent downward departure, then the range would have been 37-46 months.
The district court did not explicitly state these calculations, but it "did far more than toss off a blanket alternative sentence."
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United States v. McGee
,
Davis also argues that the 63-month sentence is substantively unreasonable relative to the alternative guideline range. We review the substantive reasonableness of a sentence under a deferential abuse-of-discretion standard.
Gall v. United States
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Davis's criminal history was "extremely serious." He committed five offenses before the age of 16; two of these offenses were for assault, and none of them received criminal history points. Davis's criminal behavior then "escalated," as he was convicted of second-degree robbery and willful injury. For these offenses, he served more than six years in prison. Despite this punishment, he committed the offense in this case fewer than two months after his release from prison. Davis also performed poorly during periods of correctional supervision, violating conditions of release on several occasions by using drugs, violating curfew, and absconding. In view of this track record, the district court reasonably concluded that there was a "high likelihood that [Davis] will recidivate."
The court also emphasized the violent conduct involved in Davis's robbery and willful injury offenses. While Davis disputed that these offenses were crimes of violence, he did not object to the portions of the presentence report that recounted the circumstances of the crimes, and he acknowledged that they involved "violent behavior." During the robbery offense, Davis or one of his companions displayed a knife, and Davis shot a victim multiple times in committing the willful injury offense. The district court permissibly arrived at a common-sense observation: "Whether or not those are crimes of violence technically is sort of beside the point. I'm calling them violent as we would use that word in ordinary conversation."
Regardless of whether prior felony convictions satisfy the definition of "crime of violence" under the categorical approaches that currently prevail under the guidelines, a district court is permitted to consider the admitted criminal conduct when applying § 3553(a).
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Davis complains that the district court placed excessive weight on his criminal history and failed to give sufficient weight to mitigating factors such as his "family situation" and "mental health issues." Davis presented these mitigating circumstances in arguing for a downward variance, and the court found that they
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were "far outweighed" by the aggravating factors discussed. This determination was within the latitude that we afford sentencing decisions under § 3553(a).
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United States v. Bridges
,
The judgment of the district court is affirmed.
The Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff - Appellee, v. Durius Antwan DAVIS, Defendant - Appellant.
- Cited By
- 5 cases
- Status
- Published