Derrick Davis, a felon on state parole, was arrested in Chicago in 2019 after police responded to a shooting and a car crash. Officers found a loaded Beretta handgun under a nearby car where Davis had been standing. Although Davis pleaded guilty to possessing the firearm, the government and the probation officer could not prove he fired the weapon. The probation officer recommended a sentence within the 51-to-63-month Guidelines range, declining to apply an enhancement for using the gun in connection with another felony due to insufficient evidence. However, the district judge imposed an 84-month sentence, relying partly on a jail phone call where Davis bragged about driving recklessly to the scene. The Seventh Circuit previously vacated this sentence, finding a procedural anomaly where the judge adopted the probation officer's finding of insufficient evidence while simultaneously crediting the jail call as proof of Davis's participation in the shooting. On remand, the judge again imposed the 84-month sentence, clarifying that the jail call was not evidence of firing the gun but rather proof of Davis's reckless state of mind and disregard for the law.
The Seventh Circuit addressed two challenges: procedural error and substantive unreasonableness. Regarding the procedural claim, the court found no error because the district judge clearly distinguished between the evidence required to prove Davis fired the gun and the evidence required to assess his character. The judge explicitly agreed with the parties and the presentence report that the evidence was insufficient to show Davis fired the weapon. Instead, the judge relied on the jail call to demonstrate Davis's 'reckless disregard for the law' and his 'cavalier attitude,' noting that Davis was 'proud' of his dangerous conduct. The court deferred to the judge's superior position to assess the credibility of the call and the defendant's state of mind. On the substantive challenge, the court applied a deferential abuse-of-discretion standard. It held that when a sentence is vacated and remanded for resentencing, the case starts on a 'clean slate.' The district judge was free to reconsider the same evidence and weigh it differently. Given Davis's extensive criminal history spanning two decades and his boastful attitude, the judge reasonably determined that the advisory Guidelines range did not adequately reflect the seriousness of his conduct. The 84-month sentence fell within the broad range of objectively reasonable sentences.
The decision affirms that district judges have broad discretion to impose above-Guidelines sentences based on a defendant's attitude and criminal history, even when the specific aggravating conduct (like firing a weapon) is not proven. It clarifies that a resentencing hearing is a fresh opportunity for the judge to weigh evidence, meaning a defendant cannot expect a reduced sentence simply because the government withdraws a specific factual allegation, provided the judge can articulate a valid alternative basis for the original sentence. The case is remanded with instructions to maintain the 84-month sentence.
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