United States Court of Appeals
          For the Eighth Circuit
      ___________________________

              No. 13-1145
      ___________________________

           United States of America

     lllllllllllllllllllll Plaintiff - Appellant

                         v.

                Mersed Dautovic

    lllllllllllllllllllll Defendant - Appellee
      ___________________________

              No. 13-1493
      ___________________________

           United States of America

      lllllllllllllllllllll Plaintiff - Appellee

                         v.

                Mersed Dautovic

    lllllllllllllllllllll Defendant - Appellant
                    ____________

   Appeal from United States District Court
for the Southern District of Iowa - Des Moines
                ____________

        Submitted: December 18, 2013
           Filed: August 14, 2014
               ____________
Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
                             ____________

WOLLMAN, Circuit Judge.

       A jury found Des Moines, Iowa, Police Officer Mersed Dautovic guilty of
willfully depriving Octavius Bonds of the right to be free from the use of
unreasonable force, in violation of 18 U.S.C. §§ 2 and 242, and knowingly falsifying
a police report with the intent to obstruct justice, in violation of 18 U.S.C. §§ 2 and
1519. Dautovic was sentenced to 20 months’ imprisonment. The government
appeals, arguing that the sentence is substantively unreasonable. We reverse and
remand for resentencing. We deny Dautovic’s conditional cross-appeal, wherein he
argues that the district court erred in applying the enhancement for physical restraint
and in denying a downward departure.

                                          I.

       On September 12, 2008, Erin Evans and her boyfriend, Octavius Bonds, went
on a date. Evans is a petite woman, standing five feet, four inches tall. Bonds, who
at the time weighed between 230 and 240 pounds, is approximately six feet, eight
inches tall. Evans and Bonds were in their early twenties, and neither had a criminal
history. The young couple had gone to the movies that night, and they left the theater
around midnight. Evans drove her father’s two-door red car. The front passenger
seat was broken, so Bonds sat in the back seat. Traffic near the theater was
congested, and a light rain was falling.

     At 11:00 p.m. on September 12, 2008, Dautovic and officer John Mailander
began a four-hour shift working security detail at an apartment complex in Des
Moines, Iowa. Both men were wearing police uniforms, and Dautovic drove a


                                         -2-
marked police car. Shortly after midnight, Dautovic and Mailander left their patrol
area to respond to a call approximately five miles away. Dautovic activated the car’s
emergency lights and siren and sped toward the call. While en route, they approached
Evans’s car in the left lane. The car did not move to the right lane immediately.
Mailander testified that the car yielded less than five seconds after the police car
approached. Evans testified that she could not pull over immediately because there
were cars in the right lane, but that she pulled into a left turn lane as soon as she was
able to do so.

       Shortly thereafter, dispatch reported that other officers had responded to the
call and no further assistance was needed. Dautovic and Mailander pulled into a gas
station parking lot and decided to stop Evans for failure to yield to an emergency
vehicle. When her car passed by the lot, Dautovic activated the emergency lights and
siren, and Evans pulled over to the right curb lane immediately.

      Dautovic exited the squad car and quickly approached the driver’s side of
Evans’s car. Evans began rolling down her window, and as she was doing so,
Dautovic yanked open the driver’s side door. According to Evans, Dautovic yelled,
“Are you from America?” He asked Evans if she was stupid and “didn’t [she] know
[she] was supposed to yield to the right when [she saw] an emergency vehicle
approaching[?]” Evans testified that she was confused and overwhelmed. She did
not understand why Dautovic was yelling at her.

        Dautovic had reached Evans’s car before Mailander had exited the police car.
Mailander approached the driver’s side of the car and leaned into the vehicle, yelling
for Evans to produce her license, registration, and insurance. Dautovic continued to
yell at Evans. Evans was upset, but she nonetheless began looking through her glove
compartment for the papers. She also grabbed her cell phone and tried to call her
mother. Bonds, whom the officers had not seen because he was seated in back,
reached to the front of the car to try to comfort Evans and help her find the papers.

                                          -3-
Evans leaned towards the passenger side of the vehicle, as Mailander tried to grab
her. Mailander unholstered his OC spray (also known as pepper spray or mace),
reached into the car, and threatened to spray Evans if she did not exit the car. At that
point, Bonds reached forward to protect Evans’s face, either by covering it with his
hands or by moving Mailander’s hand. Only then did the officers realize that there
was a passenger in Evans’s car. Mailander testified that he then pulled Evans out of
the car, dragged her along the ground to the hood of the police car, placed her in
handcuffs, and “slung her towards the curb up into the grass.” Evans suffered a
sprained wrist and road rash to her legs.

       While Mailander was taking Evans into custody, Bonds began to pull himself
out of the driver’s side door. Dautovic ordered Bonds to get back into the car. When
Bonds did not do so and instead stood in the open door, Dautovic deployed his OC
spray. Bonds testified that Dautovic continuously sprayed him with the OC as
Dautovic “walked from the trunk all the way down to the [door of the car], he walked
me down with the mace.” Bonds turned away from Dautovic and placed his hands
on top of Evans’s car. According to Bonds, he asked Dautovic to stop spraying, but
made no aggressive moves or threatening statements. The rain had formed a puddle
on the roof of the car, which Bonds was using to wipe his eyes, when Dautovic
“reached under [Bond’s] right arm with the can of mace . . . and sprayed [Bonds]
directly in the face.” Bonds testified that he grabbed Dautovic’s arm “pulled it into
my chest and I asked him to stop, please stop, stop. [Dautovic] was still holding the
trigger, and I pulled his arm over this way . . . that’s when [Dautovic] got maced.”
Bonds testified that he let go of Dautovic’s arm and put his hands back onto the car’s
roof. He could hear Evans screaming for help.

       Bonds remembers being hit on the back of his head before he lost
consciousness and collapsed into Evans’s car. He awoke as he was being pulled out
of the car. His head hit the pavement, and he lost consciousness again. When he
awoke, he saw Dautovic and Mailander with their batons drawn. Bonds testified that

                                          -4-
he went into a fetal position to protect himself as the officers struck him. He could
not remember how many times he was hit. After Bonds was face down and
handcuffed, Dautovic placed a knee on the back of Bonds’s neck and applied
pressure. Bonds testified that after he told Dautovic that he could not breathe,
Dautovic “proceeded to grind [his knee] even harder in the back of my neck.”

      Three witnesses to the beating testified at trial. They all testified that Bonds
was not resisting arrest or acting aggressively towards the officers. One witness said
that Bonds tried to protect his head, but that “[h]e never fought at all, the whole entire
time.” They heard Evans scream, describing it as “terrified” and “like a person
screaming for [her] life.”

        Mailander remembers the incident somewhat differently. He testified that
when Dautovic deployed his OC spray, Bonds “had his hands up about chest high,
fists clenched.” After Bonds’s and Dautovic’s arms became entangled, Mailander
drew his ASP baton and struck Bonds two or three times, breaking his right forearm.
According to Mailander, after the final blow, Bonds assumed a submissive position
by turning towards the car and placing his hands on the roof. Dautovic then used his
ASP baton to strike Bonds on the back of the head, splitting open his scalp and
causing an injury that would require seven staples to close. Bonds dived into the car
after sustaining the blow. Mailander testified that although Bonds was fully
compliant and possibly unconscious, Dautovic struck him two more times as he lay
partially in the car. Mailander also delivered a blow. Mailander testified that he
delivered blows only to the right side of Bonds’s body.

       The officers then removed Bonds from the car, ultimately placing him face
down on the road. As Bonds lay motionless on the ground, Dautovic struck Bonds
in the lower back twice, using what Mailander described as “a downward full swing
from a standing position.” A witness compared Dautovic’s striking motion to
chopping wood. Mailander also struck Bonds, this time in the buttocks. The officers

                                           -5-
then placed Bonds in handcuffs. Mailander called dispatch and began directing
traffic around Bonds, whose head was “on the centerline or slightly over the
centerline.” One witness testified that she drove “up on the median so we didn’t run
over this kid’s head.” Bonds and Evans were arrested, and Bonds was taken by
ambulance to the hospital.

      Bonds suffered serious injuries. As mentioned above, his right forearm was
broken and his head injury required seven staples. Bonds suffered bruising on his
head, right thigh, buttocks, and back. His left hand was broken so badly that two
bones protruded through his skin. Despite the surgery he underwent to repair his
hand, Bonds testified that it does not function as well as it should.

        Dautovic wrote an incomplete and inaccurate police report following the
incident. The report stated that Bonds exited the car and “took a fighting stance
toward [Dautovic].” Further, it stated that the officers struck Bonds across the
shoulders when “he got away from us” and explained that Bonds was struck in the
head because he ducked. Mailander testified that the report also seemed to indicate
that “after Bonds had been struck, he was still aggressive and still fighting when, in
fact, that part had happened previously.” The report said nothing about the strikes
that were delivered when Bonds was lying partially in Evans’s car or when he was
lying on the ground.

      Bonds and Evans were charged with interfering with a police officer. Bonds
was also charged with assaulting a police officer. They were tried in state court,
where Dautovic and Mailander offered perjured testimony. Ultimately, a jury
acquitted Bonds and Evans of the charges against them.




                                         -6-
        As set forth above, Dautovic was charged with using excessive force against
Bonds and obstructing justice.1 He was found guilty of both counts after a four-day
jury trial. A presentence investigation report (PSR) was prepared before sentencing.
The PSR grouped the two counts together and determined that the base offense level
was 14. See United States Sentencing Guidelines (U.S.S.G. or Guidelines)
§§ 2H1.1(a)(1), 2A2.2(a). The PSR then increased the offense level by four levels
because a dangerous weapon was used, see U.S.S.G. § 2A2.2(b)(2)(B), and by seven
levels because the victim sustained permanent or life-threatening bodily injury, see
U.S.S.G. § 2A2.2(b)(3)(C). Because the cumulative adjustments from the application
of U.S.S.G. § 2A2.2(b)(2) and (3) cannot exceed ten levels, the PSR decreased the
offense level by one. The PSR then applied a two-level enhancement because the
victim was physically restrained in the course of the offense, see U.S.S.G. § 3A1.3,
a six-level enhancement because the offense was committed under the color of law,
see U.S.S.G. § 2H1.1(b)(1), and a two-level enhancement for obstruction of justice,
see U.S.S.G. § 3C1.1. The PSR determined that Dautovic’s total offense level was
34, his criminal history category was I, and his advisory Guidelines range was 151
to 188 months’ imprisonment. The excessive force count carried a ten-year statutory
maximum term of imprisonment. 18 U.S.C. § 242. The obstruction of justice count
carried a twenty-year statutory maximum. Id. § 1519.

       The district court applied all but one of the enhancements set forth in the PSR.
The district court did not apply the seven-level enhancement for permanent or life-
threatening bodily injury and instead applied the five-level enhancement for serious
bodily injury, see U.S.S.G. § 2A2.2(b)(3)(B). The district court denied a requested
downward departure based on the claim that the victim’s conduct provoked the
offense behavior, see U.S.S.G. § 5K2.10. It explained that a victim provocation
departure seemed to be “a second bite at the trial apple. The essence of this crime
focuses on the resistance of the victim and the force used against [him], and I see that


      1
          Mailander pleaded guilty to obstruction of justice.

                                           -7-
as . . . the defense in this case which was rejected beyond a reasonable doubt by the
jury.” Accordingly, the district court determined that Dautovic’s total offense level
was 33 and that his advisory Guidelines range was 135 to 168 months’ imprisonment.

       The district court rejected the advisory Guidelines range, specifically calling
into question the six-level color-of-law enhancement. The district court remarked
that that enhancement “adds 65 months to the recommended sentencing simply
because it was under color of law. There’s only one other instance I can think of
where the guidelines so quickly ratchet up a recommended sentence to the statutory
maximum, and that would be the child pornography guidelines.” The district court
found that “[g]uidelines in this case that exceed the statutory maximum for Count 1
are unreasonable, and I reject them as a basis for imposing sentence here.”

       The district court then heard from the parties. Dautovic had explained at trial
that he was born in Srebrenica, Bosnia, and that his family moved to Sarajevo when
he was twelve, after the army occupied Srebrenica. The Bosnian War lasted from
1992 to 1995, and Dautovic’s father was killed in the genocide that accompanied the
war. Dautovic lived in a refugee camp before relocating to the United States at age
fifteen. Dautovic learned English, graduated from high school and college, and
became a United States citizen. Dautovic graduated from the Des Moines Police
Academy in December 2007 and thereafter completed eight weeks of field training.

       The psychiatrist who testified at sentencing had done extensive work with
survivors of the Bosnian War and had completed a two-hour interview with Dautovic.
He testified that Dautovic’s experience in Bosnia had caused “an excessive fear
response,” which the expert described as being “like a switch flipped in [Dautovic’s]
brain and he went from zero to a hundred, you know, in an instant.” The expert
explained that Dautovic’s exposure to extreme levels of trauma between the ages of
nine and twelve “and then [his] continued adversity afterwards leading up to his
resettlement here in Iowa, it changed his brain and it changed the way he looks at the

                                         -8-
world.” On cross-examination, however, the expert acknowledged that Dautovic
denied any wrongdoing: “He told me he thought that he was doing his job, thought
he was doing the right thing.”

      After hearing argument from the parties, the district court considered the
sentencing factors set forth in 18 U.S.C. § 3553(a). It found Dautovic’s offense
conduct to be serious:

      We didn’t submit this case to the jury on a claim that someone made a
      bad mistake one night. We didn’t submit it on a claim of negligence, a
      failure to use ordinary care. We submitted this case on a claim of an
      intentional deprivation of civil rights. . . . These were just young people
      coming home from the movies. They did not deserve what happened
      here.

      After I heard the evidence, I was quite certain that the jury was going to
      convict you for both of these offenses.


       In considering a just punishment, the district court expressed concern that a
sentence within the advisory Guidelines range would “approach or exceed the
statutory maximum for a first time offense[.]” The district court found that Dautovic
presented little risk of committing further crimes, because he had no criminal history
and was no longer a police officer. The district court “weighed heavily the need to
avoid unwarranted sentencing disparity among defendants with similar records or
lack thereof who have been convicted of similar conduct.” In doing so, it considered
Dautovic’s sentencing memorandum, wherein he set forth the U.S. Sentencing
Commission’s statistics for civil rights offenses for the years 2008 to 2012. The
average length of sentence for those years ranged from 22.5 months to 39.1 months
(mean) and from 8 months to 14.5 months (median). The district court also
acknowledged that Dautovic’s conduct was somewhat of an aberration, in light of



                                         -9-
“the good things that [he had] done for the community, the good family member that
[he had] been[.]”

       The district court was troubled by the fact that Dautovic “show[ed] no remorse
for what [he had] done[.]” The district court considered Dautovic’s personal history,
but it could not relate his experience in Bosnia to his actions in the early morning
hours of September 13, 2008. The district court remarked that Dautovic did not
“claim anything inappropriate happened, so it’s hard to tie those two together in light
of that.” The district court agreed that the situation went from “zero to a hundred,”
noting that Dautovic and Mailander “were in over their head. As the excitement level
rose, more experienced heads would have prevailed, but this one certainly got out of
control very, very quickly.”

      Ultimately, the district court “conclude[d] that the guideline sentencing system
inadequately addresse[d] the circumstances of this defendant and that the range [was]
unreasonable.” The district court imposed concurrent 20-month sentences on both
counts of conviction, finding that a 20-month term of imprisonment was “sufficient
but not greater than necessary to address the essential sentencing considerations.”

                                           II.

       We review the substantive reasonableness of a sentence under an abuse of
discretion standard. Gall v. United States, 128 S. Ct. 586, 591 (2007). In doing so,
we must “take into account the totality of the circumstances, including the extent of
any variance from the Guidelines range.” Id. at 597. Although we may not apply a
presumption of unreasonableness to a sentence outside the Guidelines range, we may
consider the extent of any deviation. Id. If the district court “decides that an outside-
Guidelines sentence is warranted, [it] must consider the extent of the deviation and
ensure that the justification is sufficiently compelling to support the degree of the
variance.” Id. We cannot “require[] ‘extraordinary’ circumstances to justify a

                                          -10-
sentence outside the Guidelines range.” Id. at 595. Nor can we use “a rigid
mathematical formula that uses the percentage of a departure as the standard for
determining the strength of the justifications required for a specific sentence.” Id.
Our review of the substantive reasonableness of a variance is thus narrow and
deferential, for we must give “due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 597.

       “The federal courts of appeals review federal sentences and set aside those they
find ‘unreasonable.’” Rita v. United States, 551 U.S. 338, 341 (2007). We have not
yet comprehensively defined the considerations that govern appellate review of a
sentence’s substantive reasonableness. United States v. Kane, 639 F.3d 1121, 1136
(8th Cir. 2011). We have agreed with our sister circuits, however, that “substantive
review exists, in substantial part, to correct sentences that are based on unreasonable
weighing decisions.” Id. (quoting United States v. Irey, 612 F.3d 1160, 1194 (11th
Cir. 2010) (en banc) (collecting cases)).

       We conclude that the district court imposed a substantively unreasonable
sentence in this case. Dautovic’s offense conduct was egregious. A police officer
beat an innocent victim with a dangerous weapon, causing serious bodily injury and
permanent physical damage. He arrested Bonds and Evans and then wrote a false
police report that caused them to be charged with crimes. At Bonds and Evans’s trial,
where they were found innocent, Dautovic committed perjury. Dautovic maintained
throughout his trial that his actions in the early morning hours of September 13 were
reasonable and that his police report was sloppy, not intentionally falsified. A jury,
however, found him guilty beyond a reasonable doubt of using excessive force and
obstructing justice, and the district court’s findings at sentencing were consistent with
the jury’s verdict. The district court found that Dautovic showed no remorse and that
his experience in Bosnia did not relate to his beating of Bonds.




                                          -11-
      The district court, nonetheless, varied downward from the bottom of the
Guidelines range by 115 months. The district court found that Dautovic overreacted
during the arrest and beating of Bonds. It disagreed with the Guidelines range
because it believed that the color-of-law enhancement added too many months to the
sentencing range and because the sentencing range exceeded the statutory maximum
term of imprisonment for the excessive force count. It found that a Guidelines-range
sentence was inappropriate in light of the fact that Dautovic was a first time offender
who had done good things for his community and family. The district court acted
within its discretion when it decided to vary downward based on Dautovic’s history
and characteristics and on its policy disagreement with the Guidelines, but these
considerations do not justify the imposition of a 20-month sentence in this case.

        The district court’s justification for the variance fails to support the degree of
the variance in this case. To the extent the district court tried to avoid unwarranted
sentence disparities by basing Dautovic’s sentence on the average sentence imposed
for civil rights violations, we are not convinced that the U.S. Sentencing Commission
surveyed defendants whose records and offense conduct were similar to Dautovic’s.
See 18 U.S.C. § 3553(a)(6) (requiring the district court to consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct”). Section 242 criminalizes a variety of offense
conduct, ranging from nonviolent misdemeanors to violent felony offenses, but the
statistics addressed only civil rights violations in general, not offense conduct.2

      2
       According to the Sentencing Commission’s report, the civil rights category
includes the following types of violations:

      interference with rights under color of law; force or threats to deny
      benefits or rights; obstructing an election or registration; manufacture,
      etc. – eavesdropping device; other deprivations/discrimination;
      obstructing correspondence; peonage, servitude, and slave trade;
      intercept communication or eavesdropping; and conspiracy to deprive
      individual of civil rights.

                                          -12-
Dautovic’s offense conduct involved aggravating circumstances, including the use
of a dangerous weapon, the physical restraint of Bonds during the course of the
beating, and the infliction of serious injury. Moreover, acting under the color of law,
Dautovic tried to conceal his wrongdoing by falsifying a police report and lying under
oath.

      When the totality of the circumstances is considered, a variance from the
Guidelines range of 135 to 168 months’ imprisonment to a 20-month sentence is
unreasonably lenient. The district court erred in weighing the § 3553(a) factors and
abused its discretion in varying downward to the extent that it did. See Kane, 639
F.3d at 1136 (holding that the sentence was “the product of unreasonable weighing
decisions and is, therefore, substantively unreasonable”). Accordingly, we vacate the
sentence and remand for resentencing.3

       We have considered and deny Dautovic’s cross-appeal. The district court did
not err in applying the two-level enhancement for physical restraint. See United
States v. Kirtley, 986 F.2d 285, 286 (8th Cir. 1993) (per curiam) (“[A] defendant
physically restrains persons if the defendant creates circumstances allowing the
persons no alternative but compliance.”). Nor did the district court err in denying a
downward departure for victim provocation. See Blankenship v. United States, 159
F.3d 336, 339 (8th Cir. 1998) (“A section 5K2.10 motion for downward departure is
warranted when the victim’s behavior significantly contributed to provoking the
behavior of the offense[.]” (emphasis omitted)).




United States Sentencing Commission Final Quarterly Data Report app. A 7 (2011),
available at www.ussc.gov.
      3
        On remand, the district court is directed to address both counts of conviction.
From its explanation, we cannot discern whether or how Dautovic’s obstruction of
justice conviction was considered in the imposition of sentence.

                                         -13-
                                       III.

      The sentence is vacated, and the case is remanded for resentencing consistent
with the views set forth in this opinion.
                       ______________________________




                                       -14-
