             Case: 17-10443    Date Filed: 05/18/2018   Page: 1 of 15


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-10443
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 4:15-cr-00206-WTM-GRS-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JAMAL DAVIS,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                         ________________________

                                 (May 18, 2018)

Before TJOFLAT, NEWSOM and HULL, Circuit Judges.

PER CURIAM:

      Jamal Davis appeals his 120-month sentence after pleading guilty to

possession of a firearm and ammunition by a convicted felon, in violation of 18
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U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Davis argues that the district court

plainly erred in (1) applying an increase to his base offense level for reckless

endangerment during flight, under U.S.S.G. § 3C1.2, and (2) treating the

Sentencing Guidelines as mandatory or presumptively reasonable. After careful

review of the record and the parties’ briefs, we conclude that the district court did

not treat Davis’s advisory guidelines range as mandatory or presumptively

reasonable, and that the record supports the § 3C1.2 increase. Accordingly, we

affirm.

                                I. BACKGROUND

A.    Offense Conduct

      On October 31, 2015, a Savannah police officer observed Davis walk

between two vehicles in a parking lot, kneel down, then stand back up and adjust

his waistband. The officer subsequently discovered a 9mm semiautomatic pistol

with a 31-round magazine in the area where he had seen Davis kneeling down.

Davis was arrested, charged in state court with possession of a firearm by a

convicted felon and reckless conduct, and ultimately released on bond on

November 14, 2015.

      Several months later, on March 17, 2016, Davis allegedly shot at two

women outside of a Savannah public housing complex. As a result of that alleged




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conduct, federal and state arrest warrants were issued for Davis for, among other

things, aggravated assault and possession of a firearm by a convicted felon.

      On March 30, 2016, Savannah police officers observed Davis driving a

silver Oldsmobile Alero. The officers followed Davis until he pulled into a

driveway and parked beneath a carport. While Davis was still in the vehicle with

the engine running, officers in both marked and unmarked vehicles moved in to

arrest him. The blue lights of the marked vehicles were on at the time, and the

officers yelled out “police” as they approached Davis’s vehicle.

      As the officers got close to the vehicle, they saw Davis sitting in the driver’s

seat with a gun tucked under his leg. The officers verbally instructed Davis to turn

off the engine and unlock the vehicle’s doors, but Davis did not comply with their

commands. Instead, Davis attempted to flee in his vehicle by pressing on the gas

pedal, but the loose sand in the carport prevented the vehicle from moving.

Nevertheless, Davis continued to spin the tires, causing the engine to smoke.

      An officer then broke the driver’s side window of Davis’s vehicle and

instructed Davis to raise his hands. When Davis continued to ignore the officers’

orders, an officer deployed a taser on Davis four times in five-second cycles.

remained noncompliant during the first three taser cycles, and the firearm remained

tucked under his leg. During the fourth cycle, an officer was able to reach in and

retrieve the firearm from under Davis’s leg, after which Davis became compliant.


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The officers then removed Davis from the vehicle and placed him under arrest. In

addition to the firearm (a loaded .40 caliber semiautomatic pistol) officers also

recovered 1.9 grams of marijuana from Davis’s vehicle.

B.    Indictment and Guilty Plea

      As a result of the above conduct, a federal grand jury charged Davis in a

second superseding indictment with: (1) two counts of being a felon in possession

of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)

(Counts 1 and 3); (2) two counts of possession of a firearm and ammunition by a

person convicted of a misdemeanor crime of domestic violence, in violation of 18

U.S.C. §§ 922(g)(9) and 924(a)(2) (Counts 2 and 4); (3) one count of receipt of a

firearm by a person under indictment, in violation of 18 U.S.C. §§ 922(n) and

924(a)(1)(D) (Count 5); and (4) one count of possession marijuana, in violation of

21 U.S.C. § 844(a) (Count 6).

      Pursuant to a written agreement, Davis ultimately pled guilty to Count 3 of

the superseding indictment—the felon in possession charge arising from his

March 30, 2016 possession during his arrest in his vehicle—and the government

dismissed the remaining charges. At the change of plea hearing, the district court

advised Davis, among other things, that although the government was dismissing

the remaining counts in the superseding indictment, “according to the Advisory

Sentencing Guidelines, the charges against you in those counts may still play a part


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in the calculation of sentence.” The district court further explained that Davis

faced a maximum term of 10 years’ imprisonment on Count 3, “but the Sentencing

Guidelines . . . will be considered by th[e] court in an advisory manner when

deciding and determining the appropriate sentence in your case.” Davis confirmed

that he understood the district court “[was] going to use the guideline ranges as

advisory when deciding upon the sentence.”

      The district court further stated:

      In certain limited ways the Court has a right to depart from the
      Advisory Guidelines, downward or upward, and you will have a right
      to appeal the sentence and the government will have a right to appeal
      the sentence. And even though you have a plea agreement with the
      government, I want to make it clear that I’m unlikely to sentence you
      outside of the range of your Advisory Guidelines.                Any
      recommendation from the government will be considered by the
      Court, but the Court is not bound by a government recommendation.

      The district court then reviewed the terms of the plea agreement and the

charge in Count 3 with Davis, and Davis confirmed that he was pleading guilty to

that charge. To establish a factual basis for the plea, the government presented the

testimony of Special Agent Lee Hoover of the Bureau of Alcohol, Tobacco,

Firearms and Explosives. Special Agent Hoover recounted the circumstances of

Davis’s March 30, 2016 arrest, and Davis confirmed that Hoover’s account was

accurate.




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C.    Presentence Report

      Prior to sentencing, a probation officer prepared a presentence report

(“PSR”), which recounted Davis’s offense conduct and criminal history and

calculated his advisory guidelines range. The probation officer calculated a base

offense level of 26 under U.S.S.G. § 2K2.1(a)(1) because Davis had two prior

felony convictions for a crime of violence or a controlled substance offense—

namely, (1) a 2004 Georgia conviction for robbery, and (2) a 2011 Georgia

conviction for possession of marijuana with intent to distribute. Davis received a

two-level increase under U.S.S.G. § 2K2.1(b)(4)(A) because one of the firearms he

possessed had been stolen. He received another two-level increase under U.S.S.G.

§ 3C1.2 because he recklessly created a substantial risk of death or serious bodily

injury in the course of attempting to flee from a law enforcement officer. Davis

also received a three-level decrease under U.S.S.G. § 3E1.1(a) and (b) for his

acceptance of responsibility, resulting in a total offense level of 27.

      Based on his criminal history, Davis received a criminal history score of 18,

placing him in a criminal history category of VI. With a criminal history category

of VI and a total offense level of 27, Davis’s advisory guidelines range was 130 to

162 months’ imprisonment. Because Count 3 carried a statutory maximum

sentence of only 120 months (10 years), however, Davis’s advisory guidelines

range became 120 months’ imprisonment. Davis made no objections to the PSR.


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D.    Sentencing

      At sentencing, Davis confirmed that he had no objections to the PSR, and

the district court accordingly adopted the PSR’s factual statements and guidelines

calculations. Davis then argued for a below-guidelines sentence, explaining that he

had become involved with the criminal justice system at a young age and became

“a prime example of the school-to-prison pipeline.” Davis noted that he had

limited contact with his parents growing up, in part because his father was in and

out of prison during his childhood, and that Davis himself became involved with

the criminal justice system at age 17 and did not graduate from high school. Davis

further argued that, despite his prior criminal history, he was an active father to his

children and had been employed prior to his present conviction. Davis submitted

that a 10-year sentence outweighed the seriousness of the crime, as he was not

using the firearm to engage in other criminal conduct at the time of his arrest.

Davis also contended that a 10-year sentence would not serve as a deterrent to

society, and maintained that “the goal of our criminal justice system is to

rehabilitate and not to solely punish.”

      The district court responded that Davis had an extensive criminal history,

particularly in light of his relatively young age (not yet 30), and “nothing has

served as a deterrent to Mr. Davis.” The district court elaborated:

      I mean he’s been before the Court over and over and over again. He’s
      been placed on probation in the State Court system over and over and
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      over again, and yet, he continues to engage in criminal behavior. So
      there’s been nothing so far that’s been a deterrent to Mr. Davis’s
      going out and committing another crime.

      Davis responded that the answer to that problem was not more prison, but

rather rehabilitative measures, such as education and counseling. The district court

again emphasized the need to deter Davis given his seemingly intractable pattern

of getting out of jail and soon thereafter committing more crimes or violating

probation.

      The government argued that a guidelines sentence was appropriate in

Davis’s case given his extensive and violent criminal history, highlighting some of

his more troubling prior convictions, including a violent armed robbery at age 17,

battery on a pregnant woman at age 24, and the alleged shooting in March 2016.

The government further noted that Davis’s conduct in this case—attempting to flee

in his vehicle with a loaded firearm under his leg—was consistent with Davis’s

overall criminal history.

      After Davis allocuted, the district court imposed sentence. In doing so, the

district court stated: “I’ve listened to the defendant and to defendant’s counsel.

I’ve listened to counsel for the government. I’ve reviewed the presentence

investigation report and the addendum. I’ve also considered the factors set forth at

18 United States Code Section 3553(a).” The district court then sentenced Davis

to 120 months’ imprisonment, and stated that it found “no reason to depart from


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the sentence called for by application of the Advisory Guidelines inasmuch as the

facts found are the kind contemplated by the Sentencing Commission.” After

pronouncing sentence, the district court asked the parties whether they had “any

objections to the Court’s findings of fact, conclusions of law or the manner in

which the sentence was pronounced.” Davis responded that he had no objection.

                                   II. DISCUSSION

      Davis raises two claims on appeal: (1) that the district court erred in

applying the two-level increase under § 3C1.2 for reckless endangerment during

flight; and (2) that the district court erred by treating the Guidelines as either

mandatory or presumptively reasonable. Because Davis did not raise these

objections in the district court, we review both of his claims only for plain error.

United States v. Perez, 661 F.3d 568, 583 (11th Cir. 2011). To demonstrate plain

error, Davis must show: (1) an error, (2) that is plain, (3) that affects his substantial

rights, and (4) that seriously affects the fairness, integrity, or public reputation of a

judicial proceeding. Id.

A.    Reckless Endangerment Increase

      Section 3C1.2 of the Sentencing Guidelines provides for a two-level increase

in a defendant’s base offense level “[i]f the defendant recklessly created a

substantial risk of death or serious bodily injury to another person in the course of

fleeing from a law enforcement officer.” U.S.S.G. § 3C1.2. The term “during


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flight” is construed broadly, and includes conduct occurring in preparation for

flight or in the course of resisting arrest. Id. § 3C1.2 cmt. n.3. Nevertheless, flight

alone is insufficient to apply the enhancement. United States v. Matchett, 802 F.3d

1185, 1197 (11th Cir. 2015). Rather, the defendant’s flight must be accompanied

by a substantial risk of death or serious bodily injury that the defendant recklessly

created, as when a defendant drives at a high rate of speed in an area where people

are in close proximity. See id.; United States v. Washington, 434 F.3d 1265, 1268

(11th Cir. 2006).

      Conduct that could potentially harm a police officer or a third party is

sufficiently reckless to warrant the § 3C1.2 enhancement, even if the defendant did

not actually cause such harm. Matchett, 802 F.3d at 1198. This is because § 3C1.2

“requires only that there was a substantial risk that something could have gone

wrong and someone could have died or been seriously injured.” Id. Thus, in

Matchett, this Court held that the district court did not err in applying the § 3C1.2

enhancement to a defendant who resisted arrest and struggled with a police officer

for several minutes while carrying a loaded handgun in his pocket because there

was a significant chance that the firearm could have accidentally discharged during

the struggle. Id. at 1197-98.

      The district court did not plainly err in applying the § 3C1.2 enhancement

here based on Davis’s undisputed conduct. Davis actively attempted to flee as


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officers approached his vehicle, causing his tires to spin and his engine to smoke,

and continued in that attempt despite the officers’ repeated warnings to turn off the

engine and exit the vehicle. Indeed, Davis only halted his attempt to flee after

officers had broken his driver’s side window, tased him several times, and secured

the loaded pistol Davis had tucked under his leg. Had Davis’s tires found purchase

on the loose sand in the carport at any point during this course of events, there is a

substantial risk that one of the officers approaching the vehicle could have been

struck and killed or seriously injured. See id. at 1197-98. Accordingly, Davis’s

conduct was sufficiently reckless to warrant application of the § 3C1.2

enhancement.

      Davis also argues that application of the § 3C1.2 enhancement constituted

impermissible double counting to the extent that it relied on his possession of a

loaded gun during his attempted flight, as that conduct was already taken into

consideration in calculating his base offense level. As we have explained,

however, the enhancement applied based on the overall risk Davis created in

attempting to flee in his vehicle as the officers approached, not merely on the

presence of a loaded firearm in the vehicle. Thus, the § 3C1.2 enhancement

addressed a different harm than Davis’s base offense level, and no impermissible

double counting occurred. See United States v. Cubero, 754 F.3d 888, 894 (11th

Cir. 2014) (“Impermissible double counting occurs only when one part of the


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Guidelines is applied to increase a defendant’s punishment on account of a kind of

harm that has already been fully accounted for by application of another part of the

Guidelines.” (quotation marks omitted)).

B.     Consideration of the Advisory Guidelines Range

       Prior to the Supreme Court’s decision in Booker,1 the Sentencing Guidelines

were mandatory, and a district court’s authority to impose a sentence outside of the

guidelines range was narrowly circumscribed. See Irizarry v. United States, 553

U.S. 708, 713, 128 S. Ct. 2198, 2202 (2008). Under the post-Booker, advisory

guidelines regime, district courts may still “depart” from the Guidelines to

sentence a defendant outside of his guidelines range under the departure

framework set out in the Guidelines. See Irizarry, 553 U.S. at 714, 128 S. Ct. at

2202 (“‘Departure’ is a term of art under the Guidelines and refers only to non-

Guidelines sentences imposed under the framework set out in the Guidelines.”).

Additionally, district courts now also have broad discretion to “vary” from a

defendant’s advisory guidelines range and impose “a non-Guidelines sentence

outside the Guidelines framework” based on consideration of the 18 U.S.C.

§ 3553(a) factors.2 See Pepper v. United States, 562 U.S. 476, 498 n.12, 131 S. Ct.

1229, 1245 n.12 (2011).


       1
           United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
       2
         Under § 3553(a), a district court must impose a sentence that is “sufficient, but not
greater than necessary, to comply with the purposes” listed in § 3553(a)(2), which include the
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       Because the Guidelines are now advisory, district courts may not apply them

as if they were mandatory or treat the guidelines range as presumptively

reasonable. United States v. Hill, 643 F.3d 807, 880 (11th Cir. 2011). Rather, the

district court “must make an individualized assessment based on the facts

presented,” using the guidelines range as “the starting point and the initial

benchmark.” Gall v. United States, 552 U.S. 38, 49-50, 128 S. Ct. 586, 596-97

(2007). In determining whether the district court improperly treated the Guidelines

as mandatory or presumptively reasonable, we consider whether the district court

made any statements to that effect, specifically noted that the Guidelines are

advisory, analyzed the § 3553(a) factors, and considered the defendant’s argument

for a non-guidelines sentence. See United States v. Carpenter, 803 F.3d 1224,

1233 (11th Cir. 2015).

C.     Davis’s Sentence

       On this record, we conclude that the district court did not treat the

Guidelines as mandatory or presumptively reasonable in sentencing Davis to a

guidelines sentence of 120 months. Both at the plea hearing and at sentencing, the

district court repeatedly referred to the Guidelines as “advisory” and stated that it

need to: (1) reflect the seriousness of the offense, (2) promote respect for the law, (3) provide
just punishment for the offense, (4) deter criminal conduct, and (5) protect the public from the
defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). In imposing a particular sentence,
the district court must also consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the applicable guidelines range,
any pertinent policy statements of the Sentencing Commission, and the need to avoid
unwarranted sentence disparities. Id. § 3553(a)(1), (3)-(6).
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would consider the guidelines range “in an advisory manner when deciding and

determining the appropriate sentence in [Davis’s] case.” Carpenter, 803 F.3d at

1233. Additionally, the district court’s statements at sentencing demonstrate that it

made an individualized assessment that a guidelines sentence was appropriate in

Davis’s case based on his history, characteristics, and the need for deterrence.

Gall, 552 U.S. at 49-50, 128 S. Ct. at 596-97. Specifically, in responding to

Davis’s arguments for a below-guidelines sentence, the district court noted Davis’s

extensive criminal history given his relatively young age and remarked that his

prior stints in jail and on probation appeared to have no deterrent effect on Davis.

See 18 U.S.C. § 3553(a)(1), (2)(B).

      Moreover, in imposing sentence, the district court explicitly stated that it had

considered both parties’ arguments, the PSR, and the § 3553(a) factors, and

explained that it found “no reason to depart from the sentence called for by

application of the Advisory Guidelines inasmuch as the facts found are the kind

contemplated by the Sentencing Commission.” Carpenter, 803 F.3d at 1233. In

other words, the district court understood its authority to impose a sentence outside

of the guidelines range, but determined that the advisory guidelines range

appropriately took into account the facts of Davis’s case and that Davis’s “personal

circumstances were simply not different enough to warrant” a below-guidelines

sentence. See United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007).


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      Davis nevertheless argues that the district court’s statements at his plea

hearing—that the district court could depart from the Guidelines only “[i]n certain

limited ways” and that it was “unlikely to sentence [Davis] outside of the range of

[his] Advisory Guidelines”—demonstrate that the district court viewed the

Guidelines as mandatory, or at least as presumptively reasonable. We recognize

that these statements, read in isolation, might suggest that the district court

misunderstood its broad sentencing discretion or impermissibly presumed the

guidelines’ reasonableness. However, given the totality of the district court’s

statements both at the plea hearing and at sentencing, it is clear that the district

court properly understood its discretion and merely determined that a guideline

sentence was reasonable in light of the particular facts and circumstances of

Davis’s case.

                                 III. CONCLUSION

      For the foregoing reasons, we conclude that the district court did not err,

much less plainly err, by imposing the reckless endangerment during flight

enhancement under § 3C1.2 and did not improperly treat the Guidelines as

mandatory or presumptively reasonable. Accordingly, we affirm Davis’s 120-

month sentence.

      AFFIRMED.




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