United States of America v. Dontavius Rashaun Sharkey, also known as Dontavius Rashawn Sharkey, also known as…

United States Court of Appeals
For the Eighth Circuit
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No. 24-1294
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United States of America
Plaintiff - Appellee
v.
Dontavius Rashaun Sharkey, also known as Dontavius Rashawn Sharkey, also
known as Dontavius Rashown Sharkey
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: January 16, 2025
Filed: March 12, 2025
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Before GRUENDER, BENTON, and ERICKSON, Circuit Judges.
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BENTON, Circuit Judge.
A jury convicted Dontavius R. Sharkey of, as relevant here, two counts of
felon in possession of a firearm and two counts of a straw-purchasing conspiracy in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(8), 932(b)(1), and 932(c)(1). The district

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court1 sentenced Sharkey to 360 months. He appeals his conviction and sentence.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
Sharkey argues that 18 U.S.C. § 922(g)(1) is unconstitutional on its face and
as-applied to him. He contends that the felon-in-possession charges were
unconstitutional as-applied because his prior felony was nonviolent. He adds that
the straw-purchasing-conspiracy charges were unconstitutional as-applied because
they rested on the prohibition from possessing a firearm as a felon. This court’s
precedent forecloses these arguments. See United States v. Jackson, 110 F.4th
1120, 1125 (8th Cir. 2024) (holding post-Rahimi that “there is no need for felony-
by-felony litigation regarding the constitutionality of § 922(g)(1)”).
Sharkey challenges the use of acquitted conduct to increase his Guidelines
range and enhance his sentence. The district court found Sharkey’s acquitted
conduct proven by a preponderance of the evidence: “I find by a preponderance of
the evidence that the Government established that Defendant was the person who
fired 24 rounds from a machinegun and another weapon into a crowd of people.”
This challenge is contrary to longstanding precedent. See United States v.
Watts, 519 U.S. 148, 157 (1997) (holding “a jury’s verdict of acquittal does not
prevent the sentencing court from considering conduct underlying the acquitted
charge, so long as that conduct has been proved by a preponderance of the
evidence”); United States v. Bullock, 35 F.4th 666, 671 (8th Cir. 2022), cert. denied,
143 S. Ct. 2691 (2023) (holding “reliance on acquitted conduct to depart upward did
not violate [defendant’s] Fifth and Sixth Amendment rights”).
Nor was the court required to apply proposed amendments to the Sentencing
Guidelines that would prohibit consideration of acquitted conduct. See United
States v. Lawin, 779 F.3d 780, 781 (8th Cir. 2015) (“Our case law on this issue is
1 The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.

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clear: The district court was not required to consider the pending guidelines
amendment. Consideration of the pending amendment is merely permissible, not
required.” (cleaned up)).
Moreover, the district court stated that: “even without [the acquitted conduct],
this sentence would be appropriate.” “Any error resulting from an incorrect
calculation of the Guidelines is harmless when the district court indicates it would
have alternatively imposed the same sentence even if a lower guideline range
applied.” United States v. Holmes, 87 F.4th 910, 914 (8th Cir. 2023) (cleaned up).
Sharkey contests the procedural and substantive reasonableness of his
sentence. Procedurally, Sharkey objects to the “in connection” and “role
adjustment” enhancements applied to his Guidelines range. See U.S.S.G. §
2K2.1(b)(6)(B) (providing a four-level enhancement “[i]f the defendant . . . used or
possessed any firearm or ammunition in connection with another felony offense”);
§ 3B1.1(c) (providing a two-level enhancement “[i]f the defendant was an organizer,
leader, manager, or supervisor in any criminal activity”). See generally United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (“‘Procedural error’
includes ‘failing to calculate (or improperly calculating) the Guidelines range . . .
selecting a sentence based on clearly erroneous facts, or failing to adequately explain
the chosen sentence—including an explanation for any deviation from the
Guidelines range.’” (quoting Gall v. United States, 552 U.S. 38, 51 (2007))). “This
court reviews the district court’s interpretation and application of the guidelines de
novo, and its factual findings for clear error.” United States v. Burnette, 518 F.3d
942, 945 (8th Cir. 2008).
Based on the evidence, the district court did not clearly err by finding Sharkey
committed the acquitted conduct by a preponderance of the evidence. (“I find by a
preponderance of the evidence that the Government established that Defendant was
the person who fired 24 rounds from a machinegun and another weapon into a crowd
of people.”) Nor did it err by finding Sharkey directed a co-conspirator to purchase
a gun on his behalf. (“This evidence established by a preponderance of the evidence

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that the defendant recruited, directed, and controlled . . . [M.M.’s] involvement in
the straw purchase of multiple weapons on his behalf and at his direction.”)
Substantively, Sharkey challenges the above-range 360-month sentence (the
range was 262 to 327 months). This court reviews substantive reasonableness for
an abuse of discretion. United States v. Petersen, 22 F.4th 805, 807 (8th Cir. 2022).
“A district court abuses its discretion when it (1) fails to consider a relevant factor
that should have received significant weight; (2) gives significant weight to an
improper or irrelevant factor; or (3) considers only appropriate factors but in
weighing those factors commits a clear error of judgment.” Feemster, 572 F.3d at
461 (cleaned up). It “will be the unusual case when we reverse a district court
sentence—whether within, above, or below the applicable Guidelines range—as
substantively unreasonable.” Id. at 464.
The district court considered Sharkey’s conduct—including the acquitted
conduct proved by a preponderance of the evidence—and concluded he was “too
dangerous to have in the community any longer.” See United States v. May, 70
F.4th 1064, 1073 (8th Cir. 2023) (“[A] sentencing court has wide latitude to weigh
the § 3553(a) factors in each case and assign some factors greater weight than others
in determining an appropriate sentence.”). The upward variance was not an abuse
of discretion.
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The judgment is affirmed.
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