     Case: 11-60783     Document: 00511925742         Page: 1     Date Filed: 07/18/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 18, 2012
                                     No. 11-60783
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BRODERICK DAMON DAVIS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 4:10-CR-83-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Broderick Damon Davis appeals the sentence imposed following his guilty
plea to possession of an unregistered “sawed-off” shotgun. He argues that his
46-month, above-guidelines sentence was unreasonable. We affirm.
        We generally review a district court’s sentencing decision under a
“deferential abuse-of-discretion standard.” United States v. Key, 599 F.3d 469,
473 (5th Cir. 2010) (internal quotation marks and citation omitted), cert. denied,
131 S. Ct. 997 (2011). Because the sentencing judge sits in a superior position

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-60783

to make factual findings and judge their import under 18 U.S.C. § 3553(a), our
review is “highly deferential.”    Id. (internal quotation marks and citation
omitted).
      Davis contends that because his objection to the U.S.S.G. § 2K2.1(b)(6)
enhancement was sustained based on insufficient evidence of an attempted
burglary, the district court was left with no reasonable justification for imposing
an above-guidelines sentence. This conclusion is belied by the sentencing record.
The testimony revealed that on the night Davis was arrested, he was kicking in
the door to his estranged wife’s home to gain access to the residence, his wife had
a male companion with her in the home, and she feared for her life, as Davis had
already shot her on one prior occasion. Similarly, Davis’s contention that the
advisory guidelines range reasonably accounted for Davis’s personal history and
characteristics, respect for the law, and just punishment is also belied by the
record, which fully supports the district court’s finding that Davis is a violent
criminal. The district court’s reasons for the deviation were fact-specific and
allowed for meaningful appellate review. See Key, 599 F.3d at 474.
      Davis’s allegation that the district court had pre-determined that it would
impose a 46-month sentence before any evidence was adduced on the
§ 2K2.1(b)(6) issue is purely speculative. Nevertheless, nothing in the testimony
adduced at sentencing suggests that an above-guidelines sentence was
unreasonable. Insofar as Davis takes issue with the extent of the deviation, he
does so in a purely conclusional fashion. We “may consider the extent of the
deviation, but must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” Gall v. United
States, 552 U.S. 38, 51 (2007). The 46-month sentence imposed by the district
court represents a 16-month variance from the top of the guidelines range. We
have affirmed more significant deviations. See, e.g., Key, 599 F.3d at 475-76
(affirming a 216-month sentence when the applicable guidelines range was 46
to 57 months); United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir.

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                                No. 11-60783

2008) (affirming a 72-month sentence when the upper end of the guidelines
range was 30 months); United States v. Smith, 440 F.3d 704, 705-06, 708-10 (5th
Cir. 2006) (upholding a 60-month sentence when the upper end of the guidelines
range was 27 months). Davis fails to show that the district court abused its
discretion by imposing a substantively unreasonable sentence. See Gall, 552
U.S. at 51.
      AFFIRMED.




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