United States v. Davis, 062620 FED10, 19-6146

Docket Nº:19-6146
Opinion Judge:Scott M. Matheson, Jr. Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JERVARES DAMORA DAVIS, Defendant-Appellant.
Judge Panel:Before BRISCOE, MATHESON, and CARSON, Circuit Judges.
Case Date:June 26, 2020
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

JERVARES DAMORA DAVIS, Defendant-Appellant.

No. 19-6146

United States Court of Appeals, Tenth Circuit

June 26, 2020

(W.D. Okla.) (D.C. No. 5:18-CR-00280-R-1)

Before BRISCOE, MATHESON, and CARSON, Circuit Judges.

ORDER AND JUDGMENT [*]

Scott M. Matheson, Jr. Circuit Judge

Jervares Damora Davis pled guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The district court sentenced him to serve 100 months in prison, 13 months above the United States Sentencing Guidelines advisory range. Mr. Davis argues on appeal that the sentence was procedurally and substantively unreasonable. We conclude that Mr. Davis waived his procedural challenge and that he has not shown the sentence is substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we therefore affirm.

I. BACKGROUND

A. Factual Background

In 2013, Mr. Davis pled guilty in an unrelated case to being a felon in possession of a firearm and received a 66-month prison sentence and a three-year term of supervised release, which he started in June 2018.

In October 2018, Mr. Davis went to a nightclub with his girlfriend, Brooke Waugh. He belonged to the Sunnyside Blood gang. Members of a rival gang-the 107 Hoover Crips-were also at the club. One of the Crips told police that Mr. Davis was staring at them and that "they were both throwing up" gang signs in the club. ROA, Vol. 2, at 13.

Mr. Davis and Ms. Waugh left the club shortly before 2:00 a.m. The Crips were outside. With Mr. Davis in the passenger seat, Ms. Waugh initially drove past the Crips. She told police that Mr. Davis asked her to turn around so that he could talk to some "homies." ROA, Vol. 2, at 12. She also said that when she circled back toward the club, a group started shooting at them, causing Mr. Davis to pull out a gun and shoot back.

During the shootout, Ms. Waugh crashed her car. Although she was shot in the back, chest, and neck, she survived. She told police that after the crash, Mr. Davis threw his gun and ran over to her. Police found Mr. Davis's gun at the scene. In the gun's chamber, they discovered a round showing a primer strike, suggesting to police that someone had unsuccessfully tried to fire the gun. The police did not find any evidence that Mr. Davis successfully fired the gun that night.

B. Procedural Background

Mr. Davis was indicted on one count of being a felon in possession of a firearm. But after authorities learned that he tried to get Ms. Waugh's mother to disavow statements she had made to police, a superseding indictment added a witness-tampering count under 18 U.S.C. § 1512(b)(1). Mr. Davis ultimately pled guilty to being a felon in possession of a firearm. The Presentence Investigation Report (PSR) calculated an offense level of 25 and a criminal history category of IV, yielding an advisory Guidelines range of 84 to 105 months.

At the sentencing hearing, the Government presented testimony from a detective and from an inmate who had been housed in a jail pod with Mr. Davis. The inmate claimed that Mr. Davis told him that he "got into it" with some Crips, "let off with his pistol," and "threw the gun when people showed up." ROA, Vol. 3, at 58. The Government also presented surveillance footage of the shooting, still photos from surveillance cameras, and audio recordings of phone calls that Mr. Davis made from jail.

After hearing the evidence, the district court sustained Mr. Davis's objection to the PSR's conclusion that the offense involved more than minimal planning, reducing the offense level to 23 and rendering a Guidelines range of 70 to 87 months. The court then sentenced Mr. Davis to serve 100 months in prison followed by three years of supervised release, stating, Based on all that I've heard here today, my primary concern is the protection of the public. And given your conduct in this case, given it's-the recency from which you are released from prison and there you are at 2:00 in the morning with a .40-caliber gun and get in a gunfight, I just consider that the public needs to be protected from that kind of conduct.

ROA, Vol. 3, at 84.

Mr. Davis appeals, contending that his sentence is procedurally and substantively unreasonable.

II. DISCUSSION

Appellate review of a sentence's reasonableness has two components, one procedural and the other substantive. United States v. Adams, 751 F.3d 1175, 1181 (10th Cir. 2014); see Gall v. United States, 552 U.S. 38, 51 (2007). "The procedural component concerns how the district court calculated and explained the sentence, whereas the substantive component concerns whether the length of the sentence is reasonable in light of the statutory factors under 18 U.S.C. § 3553(a)." Adams, 751 F.3d at 1181. Mr. Davis challenges both the procedural and substantive reasonableness of his sentence.

A. Procedural Reasonableness

Mr. Davis argues that the district court did not adequately (1) explain the reasons for its sentence or (2) address his arguments for a sentence...

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