United States v. Derrick Davis

In the United States Court of Appeals for the Seventh Circuit ____________________ No. 21-1778 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DERRICK DAVIS, 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. ____________________ ARGUED NOVEMBER 12, 2021— DECIDED AUGUST 4, 2022 ____________________ Before SYKES, Chief Judge, and RIPPLE and ST. EVE, 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- 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. 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 …

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