                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2093
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Alexisus Jarmon Mosby,                  *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: January 15, 2008
                                Filed: September 16, 2008
                                 ___________

Before COLLOTON and SHEPHERD, Circuit Judges, and ERICKSON,1 District
Judge.
                          ___________

ERICKSON, District Judge.

       This is an appeal from Alexisus Jarmon Mosby’s conviction for possession
of a firearm by a convicted felon. Mosby’s Guideline calculation included a four-
level enhancement, which resulted in a lower sentencing range than would have
resulted in the absence of the enhancement. At sentencing, the district court2


      1
       The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota, sitting by designation.
      2
      The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.
departed upward to a sentence within the range that would have been applicable,
absent the enhancement. The defendant appealed, asserting the sentence imposed
is substantively unreasonable. We affirm the judgment of the district court.

                                        I.

      In the summer of 2006, Mosby was spotted by Charles Greaves, a
Minneapolis, Minnesota, police officer, outside a Minneapolis night club. Officer
Greaves was responding to a report that a club patron had a gun. As Officer
Greaves approached, Mosby began running. Officer Greaves gave chase. During
the pursuit, Mosby threw a revolver under a vehicle. Mosby was ultimately
apprehended and arrested by Officer Greaves.

       This was not 24-year-old Mosby’s first encounter with the law. Mosby’s
involvement with the criminal justice system began when he was 14 years old with
several car thefts. Mosby’s criminality continued as an adult, and his current
history includes a 1999 felony conviction for theft of a motor vehicle, convictions
in 2000 for felony possession of a controlled substance and misdemeanor
trespassing, and a 2002 conviction for felony attempted possession of a controlled
substance. In 2003, Mosby was convicted of three felonies: fleeing a police
officer, theft of a motor vehicle, and felon in possession of a firearm.

      Mosby was charged in a single-count indictment with unlawful possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mosby
proceeded to trial and was convicted by a jury.

       During Mosby’s sentencing hearing, the district court recognized that if a
four-level enhancement were applied to Mosby’s Guideline calculation under
United States Sentencing Guideline (U.S.S.G.) § 2K2.1(b)(6) for his possession of
a firearm in the 2003 felony fleeing and theft of a motor vehicle convictions, his
sentencing range would ultimately be reduced. The court concluded the

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enhancement was appropriate under our decision in United States v. Davis, 360
F.3d 901 (8th Cir. 2004), and applied it to Mosby’s Guideline calculation.

       The sentencing judge vocalized the absurdity of the result and questioned the
validity of Davis. The United States moved for an upward departure. The court
found that the resulting criminal history score substantially under-represented his
history and failed to recognize the likelihood that he would commit other crimes.
The court granted an upward departure and sentenced Mosby to 108 months
imprisonment. Mosby appealed, arguing the court’s upward departure under
U.S.S.G. § 4A1.3 was improper.

                                         II.

      On appeal, a district court’s sentence is reviewed for abuse of discretion.
Gall v. United States, 128 S. Ct. 586, 597 (2007); United States v. Miller, 484 F.3d
968, 970 (8th Cir. 2007) (holding that sentencing departures are reviewed using the
abuse-of-discretion standard). An appellate court’s review is two-pronged:

      It must first 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
      explain the chosen sentence – including an explanation for any
      deviation from the Guidelines range. Assuming that the district
      court’s sentencing decision is procedurally sound, the appellate court
      should then consider the substantive reasonableness of the sentence
      imposed under an abuse-of-discretion standard.

Gall, 128 at 597. Although it appears that Mosby concedes the district court
committed no procedural error and only questions the substantive reasonableness
of the sentence, the United States challenges the Guideline calculation, specifically
questioning the validity of Davis. Because it is apparent no other potential for

                                         -3-
procedural error occurred in this case, our review on this prong will focus on the
validity of Davis and the resulting four-level enhancement under § 2K2.1(b)(6).

                                        A.

      Davis holds that the four-level enhancement under § 2K2.1(b)(6) for
“possess[ing] any firearm or ammunition in connection with another felony
offense” is applicable in relation to the commission of both contemporaneous and
non-contemporaneous felonies. 360 F.3d at 903. Therefore, an individual who is
sentenced under § 2K2.1 and possessed a firearm in connection with a felony
committed years prior would be subject to the four-level enhancement. Id. In
Davis, this resulted in an increased sentencing range. In the instant case, a lower
sentencing range resulted from this application.

        Mosby’s criminal history included three convictions in 2003 for felony
motor vehicle theft, fleeing, and felon in possession, all stemming from a single
incident. In that case, a loaded, cocked gun “facilitated, or had the potential of
facilitating” the theft and fleeing. See U.S.S.G. § 2K2.1 cmt. n.14(A). Under
Davis, these charges are relevant conduct to the instant offense and trigger the
four-level § 2K2.1(b)(6) enhancement. Applying the enhancement to Mosby’s
base offense level of 20 under § 2K2.1(a)(4)(A), the resulting offense level is 24.
Because the 2003 convictions, as “relevant conduct,” could not be scored for
criminal history purposes, Mosby had eight criminal history points and was in
category IV, with a sentencing range of 77 to 96 months.

       Absent the enhancement, the 2003 convictions would be scoreable. The
total offense level would have remained 24 under § 2K2.1(a)(2),3 but Mosby’s


      3
       The 2003 motor vehicle theft conviction is a “crime of violence” under §
2K2.1(a)(2) only if it is scoreable for criminal history purposes. U.S.S.G. § 2K2.1
cmt. n.10.
                                          -4-
criminal history category would be VI after adding six additional points – three for
the 2003 offenses, plus three for committing the instant offense while on probation
and within two years of his release from the 2003 convictions. Thus, he would
have had a sentencing range of 100 to 125 months.

      The sentencing judge struggled with the application of the Guidelines under
Davis but ultimately determined that the enhancement was applicable and the
accurate sentencing range was 77 to 96 months. In Davis, we stated:

             Nothing in § 2K2.1(b)(5)4 expressly precludes its application to
      a felony offense that occurred at a time and place distinct from the
      offense of conviction. . . . A plain reading [of Guideline language]
      here is consonant with the Guideline’s far-reaching purpose of
      accounting for the increased risk of violence when those committing
      felonies possess firearms.

             ....

      [W]e do not agree that the relevant Guideline provisions are
      ambiguous. The phrase “felony offense” is elsewhere defined in §
      2K2.1(b)(5), and use of the word “another” here does not admit of two
      reasonable interpretations.

Davis, 360 F.3d at 903 (citations omitted).

        We conclude that the district court properly calculated the offense level and
criminal history, consistent with the Guidelines and Davis. The resulting sentence
is, therefore, procedurally sound.




      4
       U.S.S.G. § 2K2.1(b)(5) was renumbered to § 2K2.1(b)(6) and remains
substantively identical.
                                    -5-
                                         B.

       Mosby challenges the substantive reasonableness of the sentence,
characterizing the departure as one made “in response to the application of a
provision which the district court determined applied, but with which it did not
agree.” Departures or variances based on disagreement with a provision are not
necessarily forbidden. See Kimbrough v. United States, 128 S. Ct. 558, 573-74
(2007) (holding that a district court was permitted to grant a downward variance in
a crack cocaine case based in part on its disagreement with the Guidelines’ 100-to-
1 ratio for crack to powder cocaine sentences). In this case, however, we do not
interpret the court’s actions as responsive to disagreement with the provisions.

      When granting any departure, a sentencing judge “must give serious
consideration to the extent of [the] departure from the Guidelines and must explain
his conclusion that an unusually lenient or an unusually harsh sentence is
appropriate in a particular case with sufficient justifications.” Gall, 128 S. Ct. at
594. Upward departures under § 4A1.3(a) are applicable if “reliable information
indicates the defendant’s criminal history category substantially under-represents
the seriousness of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” We have previously concluded that upward
departures for inadequate criminal history may be reasonable when prior
convictions could not be scored for purposes of determining a criminal history
category. See United States v. Hill, 513 F.3d 894, 899 (8th Cir. 2008); Miller, 484
F.3d at 971.

      Mosby’s criminal history exhibits reckless disregard for the law and the
safety of others. The 2003 convictions for fleeing, motor vehicle theft, and
possession of a firearm stemmed from a single incident in which Mosby engaged
the police in a car chase and leapt from a moving vehicle while carrying a loaded,
cocked firearm. He was sentenced to 60 months imprisonment and had been


                                         -6-
released for approximately one month when the instant offense occurred. As it
imposed the sentence, the district court observed:

            Mr. Mosby has a lengthy criminal record. He has been
      convicted twice for auto theft. He has been convicted of drug crimes.
      He has been convicted of crimes involving guns. He has repeatedly
      committed crimes while on probation or parole. Indeed as [the
      prosecutor] pointed out, he committed this very crime, being a felon
      in possession of a firearm, while he was on probation from his last
      conviction for being a felon in possession of a firearm.

The court stated that criminal history category IV failed to reflect the seriousness
of Mosby’s criminal history or his risk of recidivism. Consequently, the court
ruled that “[c]ategory VI accurately reflects the fact that Mr. Mosby is a repeat
offender who has not been deterred from committing crime by his multiple
convictions and jail sentences.”

      We conclude this sentence is substantively reasonable. The district court
found that Mosby, a repeat offender, posed a high risk of recidivism and showed
unwillingness or inability to obey conditions of probation or parole. See Hill, 513
F.3d at 899. That the court expressed its disagreement with the proper sentencing
range is irrelevant. The Guidelines are advisory, and our review is limited to
determining whether a sentence is reasonable. Gall, 128 S. Ct. at 594. We cannot
conclude that the district court abused its discretion in departing above the
advisory range.

                                        III.

      Therefore, we affirm.

                       ______________________________



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