United States of America v. Dominic Davis

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1808
___________________________
United States of America
Plaintiff - Appellee
v.
Dominic Davis
Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: January 13, 2023
Filed: May 4, 2023
[Unpublished]
____________
Before GRASZ, MELLOY, and KOBES, Circuit Judges.
____________
PER CURIAM.
Dominic Davis signed a plea agreement for a 90-month sentence. The plea
did not specify whether the sentence would run consecutively or concurrently to
Davis’s undischarged state sentence. The district court1 imposed the 90-month
1 The Honorable Stephen R. Clark, then United States District Judge for the
Eastern District of Missouri, now Chief Judge.

-- 1 of 3 --

-2-
sentence consecutively, so Davis challenges the substantive reasonableness of his
sentence. We affirm.
Davis was charged with possession with intent to distribute fentanyl, 21
U.S.C. § 841(a)(1), distribution of fentanyl, id., and being a felon in possession of a
firearm, 18 U.S.C. § 922(g). In exchange for his plea, the Government dismissed
the firearms charge. If Davis had been convicted of the firearms charge, he would
have faced a Guidelines range of 188 to 235 months.2 Without the firearms charge,
his Guidelines range was 24 to 30 months. The parties jointly recommended a 90-
month sentence.
At the sentencing hearing, the Government did not object to the sentence
running concurrently with Davis’s undischarged state sentence. But the district court
imposed the 90-month sentence consecutively to his state sentence, meaning that
Davis expects to serve a total of 132 months. Davis argues that his federal sentence
is substantively unreasonable. We review for an abuse of discretion. United States
v. Williams, 934 F.3d 804, 808 (8th Cir. 2019) (per curiam).
The district court has broad discretion to order a consecutive sentence based
on the § 3553(a) factors. See United States v. McDonald, 521 F.3d 975, 980 (8th
Cir. 2008). Here, the district court considered the § 3553(a) factors and explained
that it imposed Davis’s sentences consecutively as an “incremental punishment for
the prior crime as well as for punishment for the counts of conviction in this case.”
Sentencing Tr. 30. Still, Davis argues that the district court considered an
impermissible factor—the leniency he had received in prior cases. See United States
v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (noting that a district court
abuses its discretion when it gives significant weight to an irrelevant or improper
factor). But we have previously found that this is a permissible consideration. See,
e.g., United States v. Sherrod, 966 F.3d 748, 755 (8th Cir. 2020); United States v.
2 If Davis had been convicted of the firearms charge, he would have been
susceptible to a sentencing enhancement under the Armed Career Criminal Act. See
18 U.S.C. § 924(e).

-- 2 of 3 --

-3-
Pippen, 777 F. App’x 842, 844 (8th Cir. 2019) (per curiam) (noting that a reasoned
basis for a heightened sentence included failed rehabilitation after previous lenient
sentences). Davis also claims that the imposed sentence creates unwarranted
sentencing disparities, but “[w]e have repeatedly declined to require district judges
to compare and contrast the defendant being sentenced with allegedly similar prior
offenders.” United States v. Keys, 918 F.3d 982, 989 (8th Cir. 2019). And even so,
the district court expressly considered the need to avoid unwarranted sentencing
disparities when imposing Davis’s sentence.
The district court did not abuse its discretion by imposing Davis’s sentence
consecutively, and so we affirm.
______________________________

-- 3 of 3 --