Extensive Upward Variance Justified by Nature of Offense, Prior Criminal History

US v. Davis: Police tried to stop Davis for driving while using a “handheld device,” but he didn’t stop and eventually crashed. While being transported following his arrest, Davis “repeatedly complained about his handcuffs” and “continued to move around in the back seat.” After repeated inquiries whether he had anything dangerous on him he admitted to being in possession of a firearm (which officers then recovered). Davis pleaded guilty to being a felon in possession of a firearm.

The PSR initially calculated Davis’ advisory Guideline range to be 57 to 71 months, largely due to prior convictions that were deemed “controlled substance offenses.”  Davis objected, arguing under Campbell that his prior offenses were not controlled substance offenses. The probation officer agreed and revised the advisory Guideline range to 21 to 27 months. At sentencing, the Government argued for a variance up to the 120-month statutory maximum based on Davis’ extensive criminal history, his conduct in fleeing and attempting to access the concealed firearm, and the fact that he would have been exposed to sentencing under the Armed Career Criminal Act had the Government charged it in the indictment. Davis argued for a sentence at the bottom of the Guideline range. The district court did vary upward, but not to the extent requested by the Government, imposing a sentence of 72 months in prison.

On appeal, the Fourth Circuit affirmed Davis’ sentence. Davis argued that his sentence was both procedurally and substantively unreasonable, largely because the district court did not adequately address mitigating arguments related to his traumatic upbringing and the limited nature of his current conduct (simple possession of a firearm for no “nefarious purpose”). The court disagreed, concluding that the district court adequately addressed those arguments but either rejected them (the nature of the offense) or found they were outweighed by other factors. On Davis’ argument about his upbringing, which was based around adverse childhood experiences (“ACEs”), the court criticized Davis for not making the ACE argument more specific to his prior conduct.