United States of America v. Derrick Davis

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 21-1778
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
D ERRICK D AVIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 20 CR 603 — Ronald A. Guzmán, Judge.
____________________
A RGUED N OVEMBER 12, 2021— D ECIDED A UGUST 4, 2022
____________________
Before SYKES , Chief Judge, and RIPPLE and ST. E VE, Circuit
Judges.
SYKES , Chief Judge. On June 15, 2019, Chicago police were
sent to the area of Sacramento Boulevard and Fillmore Street
to investigate a report of shots fired. When the officers
arrived, they saw two cars that had just collided at that
location. They also noted signs of a shoot-out. One of the
crashed cars had a bullet hole in its windshield and a shat-

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2 No. 21-1778
tered rear window. A bystander reported that one of the
drivers had a gun.
As the officers approached, they saw Derrick Davis toss a
handgun under a nearby parked car. Davis was the driver of
one of the crashed cars—the one with the bullet damage. The
officers arrested him and recovered the firearm, a loaded
Beretta with a bullet in the chamber.
While in jail Davis called an unidentified third party and
described what happened in the moments before the crash.
According to the government’s interpretation of the record-
ed call, Davis’s description contained an admission that he
had actively participated in the shoot-out.
A grand jury indicted Davis for possessing a firearm as a
felon in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty
pursuant to a written plea agreement in which he admitted
that he unlawfully possessed—and tried to hide—the loaded
Beretta handgun. He did not admit that he participated in
the shoot-out. The presentence report (“PSR”) noted Davis’s
incriminating phone call from jail but recommended against
applying a sentencing enhancement for possessing the
firearm in connection with another felony—i.e., the shooting.
See U.S.S.G. § 2K2.1(b)(6)(B). The probation officer conclud-
ed that the evidence was insufficient to support a finding
that Davis was involved in the shooting.
Without objection, the district judge adopted the PSR’s
findings. Nevertheless, the government argued that the
recorded phone call established Davis’s active participation
in the shoot-out. The judge agreed and relied on that fact to
justify an above-Guidelines sentence of 84 months in prison.

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No. 21-1778 3
The sentencing decision rests on conflicting findings that
cannot be reconciled. The judge adopted the PSR’s recom-
mendation not to apply the § 2K2.1(b)(6)(B) enhancement
because the evidence was insufficient to prove Davis’s
involvement in the shooting. Yet the judge accepted the
government’s position that the recorded phone call from jail
established that Davis was indeed an active participant. And
the judge explained his above-Guidelines sentence in large
part by reference to that finding. The inconsistency in the
judge’s findings is a procedural error that warrants correc-
tion. We vacate and remand for resentencing.
I. Background
In the early afternoon of June 15, 2019, Chicago police
were dispatched to the area of South Sacramento Boulevard
and West Fillmore Street in response to a shots-fired alert.
When they arrived, they saw that a Chrysler minivan had
just collided with another vehicle at that location. The
minivan had a bullet hole in its windshield, and its rear
window was shattered. A witness told the officers that the
driver had a gun.
As the officers drew closer to the crashed cars, they saw
Derrick Davis, later identified as the driver of the minivan,
try to hide a handgun by throwing it under a Nissan sedan
parked nearby. The officers arrested Davis and recovered
the firearm, a Beretta 9mm semiautomatic handgun. The gun
was loaded with 11 rounds, including one in the chamber.
Davis has a long felony record, including drug-
trafficking and firearms offenses. He was referred for federal
prosecution and indicted on one count of possessing a
firearm as a felon in violation of § 922(g)(1). He pleaded

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4 No. 21-1778
guilty pursuant to a written plea agreement that left the
parties free to argue for whatever sentence they thought
appropriate.
On his counsel’s advice, Davis was interviewed by the
probation agent assigned to prepare the PSR. He told the
agent that he was on his way to work on June 15 when he
became the victim of a random shooting in the area of
Sacramento and Fillmore. As Davis described the incident,
he had to duck his head to avoid being shot, which resulted
in the collision and the bullet damage to his minivan. He
claimed that he had the gun in his vehicle for protection and
was in the process of transferring it from his cousin’s girl-
friend’s house to his cousin’s house. He knew, however, that
he was prohibited from possessing a firearm because of his
prior felony convictions.
While Davis was in the Cook County Jail after his initial
arrest, he placed a call to an unidentified friend and gave a
very different description of the events on June 15—an
account that depicted his presence at the scene of the shoot-
ing as anything but random. The phone conversation was
recorded and is central to the issue in this appeal.
According to the government’s partial transcript of the
call, the recipient of the call asked Davis if he was “seeing
red and all” and “[y]ou know to go” just before the accident.
In response Davis recounted being upset about something
(it’s not clear what) and told his friend that he retrieved his
gun, drove to the scene, and then the shooting took place:
I swear to God, bro. Could not stop me bro.
Could nothing stop me. I ran the stop sign, ran
the red light … All the way to the crib, all the

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No. 21-1778 5
way back over there, bro. That’s how I knew I
was going to jail, bro. … I ran right past. I
show the blinker, like letting them know where
I’m going. Then I come all the way around to
California, through the park, back of the park.
Come out Roosevelt. Hit down Mozart. Took
Mozart all the way to Fillmore … come up to
Fillmore, straight down there … [sound of pre-
tend gunfire]. Five minutes, all that in five
minutes’ span.
The police never identified the people involved in the shoot-
ing. The PSR reported that FBI Task Force Officer Kenya
Smith, the case agent, reviewed the recorded call and con-
cluded that Davis was an active participant in the shoot-out.
The Sentencing Guidelines specified a base offense level
of 20. Section 2K2.1(b)(6)(B) calls for an upward enhance-
ment of four levels if the defendant “used or possessed any
firearm or ammunition in connection with another felony
offense; or possessed or transferred any firearm or ammuni-
tion with knowledge, intent, or reason to believe that it
would be used or possessed in connection with another
felony offense.” Although Officer Smith had concluded that
Davis had participated in the shooting—unquestionably a
felony offense—the probation officer recommended against
applying the § 2K2.1(b)(6)(B) enhancement because of a
“lack of evidence, to include that the other individuals
involved in the shoot-out were never identified.”
Davis’s acceptance of responsibility reduced his offense
level to 17. That final offense level, when combined with his
criminal history category of VI, yielded a Guidelines sen-
tencing range of 51 to 63 months in prison.

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6 No. 21-1778
In its sentencing memorandum, the government agreed
with the probation officer’s Guidelines calculation. The
prosecutor recommended a sentence at the high end of the
range, arguing that Davis’s participation in the shoot-out
was a serious aggravating factor. Relying on the recorded
jail phone call, the government maintained that Davis was
not an innocent bystander but in fact “used the firearm
during a shoot-out with other unidentified individuals.” The
government apparently overlooked—or at least did not
acknowledge—the probation officer’s contrary determina-
tion in connection with the PSR’s recommendation against
applying the § 2K2.1(b)(6)(B) enhancement.
At the beginning of the sentencing hearing, the judge
asked if either party objected to anything in the PSR. The
defense attorney noted a minor mistake in the date on which
Davis was arrested by the FBI on the § 922(g)(1) charge,
which might have had an effect on his credit for time in
custody. The judge corrected the error. With that, there were
no objections, and the judge adopted the PSR in full.
The prosecutor then reiterated the primary argument
raised in his sentencing memorandum: that Davis’s recorded
phone call from jail made it “clear” that he was “knowingly
involved in the shoot-out” that preceded the collision. The
prosecutor acknowledged that it was “not clear what he was
angry about,” but “he was angry about something, which
led him to intentionally drive to the scene” armed with a
loaded gun. That conduct, the prosecutor said, “underscores
the nature of the danger that is posed in cases like these, the
risk from—not only to other participants in the shoot-out, of
course, but also to uninvolved bystanders.”

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No. 21-1778 7
Davis’s attorney responded that the recorded phone call
could not support the conclusion that Davis was involved in
a shoot-out. She also pointed out that there was no evidence
that the Beretta had recently been fired. She urged the court
to impose a sentence slightly below the Guidelines range.
The judge then announced his evaluation of the sentenc-
ing factors in 18 U.S.C. § 3553(a). He said that he had read
the partial transcript of the recorded phone call and listened
to the recording in its entirety. Based on that review, he
found “the government’s interpretation of the defendant’s
conversation to be more probably true than not.” He further
explained: “[I]t appears to me that [the phone call] is clearly
the defendant describing what he did on that day. And the
language he use[d] leaves little room for mistake that he was
referring to something he did intentionally and … violently
on that day.” The judge then rejected Davis’s story, stating
that the phone call did not give “a description of somebody
peacefully driving by on the street and getting shot at and
then trying to get away.” As the judge interpreted the call,
Davis was telling his friend that he intentionally went to the
scene, running stop signs and driving recklessly, and ulti-
mately “engaged in a shoot-out, in possession of a gun he
had no right to possess.” Additionally, the judge noted that
Davis “knew he was going to go to jail if he got caught[,] …
and he’s telling his friend that.” The judge concluded: “I
have no difficulty interpreting [the phone call] the way the
government present[ed] it.”
The judge said he was “disappointed” that Davis was
still “refuting and denying” his participation in the shoot-
out. Finally, the judge emphasized that Davis’s “boasting of
what he did in this case to his friend in that phone conversa-

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8 No. 21-1778
tion[] reflects either the total failure to understand the
seriousness of what he did or, even worse, a complete lack of
respect for the law and the safety of others.”
Based largely on his finding that Davis was an active par-
ticipant in the shoot-out rather than an innocent bystander,
the judge imposed an above-Guidelines sentence of
84 months in prison. Davis appealed, challenging the proce-
dural soundness of his sentence.
II. Discussion
“Regardless of whether the sentence imposed is inside or
outside the Guidelines range,” our first step in a sentencing
appeal is to
ensure that the district court committed no
significant procedural error, such as failing to
calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately ex-
plain the chosen sentence—including an ex-
planation for any deviation from the
Guidelines range.
Gall v. United States, 552 U.S. 38, 51 (2007); see also United
States v. Lockwood, 789 F.3d 773, 781 (7th Cir. 2015); United
States v. Lyons, 733 F.3d 777, 784 (7th Cir. 2013).
Davis raises a claim of procedural error related to the
judge’s factual finding that he participated in the shoot-out.
Our review for procedural error is de novo. United States v.
Faulker, 885 F.3d 488, 498 (7th Cir. 2018). We review factual
findings at sentencing for clear error. United States v. Brown,

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No. 21-1778 9
843 F.3d 738, 741 (7th Cir. 2016). Davis argues that the judge
selected the sentence based on a clearly erroneous finding of
fact—namely, that he was an active participant in the shoot-
out rather than an innocent victim of it.
We agree that the sentence is procedurally flawed, but
it’s an odd sort of error grounded in conflicting cues from
the government. First, without objection from the govern-
ment, the judge accepted the probation officer’s determina-
tion that the evidence was insufficient to support a finding
that Davis possessed the Beretta in connection with another
felony offense—i.e., the shooting—and on that basis de-
clined to apply the § 2K2.1(b)(6)(B) enhancement. Then,
when evaluating the § 3553(a) factors, the judge accepted the
government’s interpretation of Davis’s jail phone call and
found that he intentionally went to the scene, angry and
armed with the Beretta, and was actively involved in the
shooting.
These findings are contradictory, and we see no way to
reconcile the inconsistency. The error can be classified as
either a defect in the judge’s fact-finding or an irregularity in
his explanation of the above-Guidelines sentence. Either
way, the sentence rests on a significant procedural error. The
judge explained the 84-month sentence largely by reference
to his finding that Davis participated in the shoot-out.
The government responds that the PSR’s findings can be
reconciled with the judge’s remarks at sentencing because a
determination that Davis participated in the shoot-out does
not—or need not—also entail a finding that he possessed the
Beretta in connection with another felony offense. This
argument is hard to follow, at least as the government
presented its case below. The prosecutor argued that the jail

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10 No. 21-1778
phone call showed that Davis “used the firearm during a
shoot-out with other unidentified individuals.” That’s a
felony in Illinois. See, e.g., 720 I LL. COMP. STAT . 5/24-1.5
(making reckless discharge of a firearm a felony). The judge
accepted this argument, finding that Davis was in fact a
participant in the shoot-out. That finding directly conflicts
with the PSR’s findings and recommendation against an
enhancement under § 2K2.1(b)(6)(B), which the judge also
adopted.
Perhaps what the judge meant to say is that Davis went
to the scene intentionally and looking for trouble but did not
actually fire his gun. That finding could perhaps be recon-
ciled with the PSR’s recommendation against the application
of the § 2K2.1(b)(6)(B) enhancement. But that’s not what the
judge said. As it stands, the record reflects an inscrutable
inconsistency in the factual findings on which the judge
based his choice of sentence.
Accordingly, resentencing is in order. We therefore
VACATE the sentence and REMAND for resentencing.

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