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

                                                 FILED
                                                                            March 6, 2009

                                       No. 07-10588                    Charles R. Fulbruge III
                                                                               Clerk



UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

SHANNON DEWAYNE DAVIS

                                                   Defendant-Appellant




                   Appeal from the United States District Court
             for the Northern District of Texas, Fort Worth Division
                               No. 4:04-CR-00199-1


Before DAVIS, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
       Defendant Shannon Dewayne Davis appeals his sentence upon remand on
the basis that the district court failed to consider the amendments to the
guidelines eliminating the disparity in sentences for cocaine powder and cocaine
base. Based on our conclusion that the sentence imposed did not result from any
guidelines error, we affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 07-10588



                                        I.
      In 2005, Davis pleaded guilty to one count of distributing more than 10
grams of cocaine base. The district court departed upward from the guidelines
range and sentenced Davis to 293 months of imprisonment. United States v.
Davis, 478 F.3d 266, 270 (5th Cir. 2007). On appeal, this court vacated the
sentence and remanded for resentencing based only on the quantity of drugs
that Davis intended to provide in the narcotics transaction. Id. at 271-74. Based
on a recalculated drug weight and the Sentencing Guidelines in effect at that
time, the PSR calculated a total offense level of 31. With his criminal history
category of V, Davis’s guidelines range of imprisonment was168-210 months.
      At the resentencing hearing, Davis argued that the district court should
take into account that, under then-proposed amendments to the Guidelines
reducing the base offense level for cocaine base offenses, his total offense level
would be 29, rather than 31.      Davis argued that the imprisonment range
provided by the then-effective Guidelines was per se unreasonable as evidenced
by the proposed amendments. The district court did not explicitly address the
cocaine base/powder disparity and the proposed amendments to the Guidelines.
Instead, it announced its decision to upwardly depart from the guidelines range.
In support of the upward departure, the district concluded that the Sentencing
Guidelines did not adequately address Davis’s criminal history category and his
post-sentencing conduct.    Stating that it was following the instructions of
§ 4A1.3(a)(4)(A) to depart upwardly, the district court “used the criminal history
category applicable to defendants whose criminal history or likelihood to
recidivate most closely resembles that of the defendant.” Finding a level VI
criminal history category still insufficient in Davis’s circumstances, the district
court “moved incrementally down the sentencing table to an offense level 33.”
That offense level and criminal history category resulted in a range of 235 to 293

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months of imprisonment.     The district court sentenced Davis to 280 months of
imprisonment. Davis timely appealed.


                                       II.
      Davis’s principal argument on appeal is that his sentence is unreasonable
because the district court did not take the cocaine base/powder disparity into
consideration in setting the sentence.       Davis argues that the Sentencing
Commission’s promulgation of the amendments to the cocaine base offense level
reflected the Commission’s determination that the Guidelines, prior to the
amendments, were not reasonable. The Government counters that the district
court was required to apply the Guidelines in effect at the time of sentencing and
that, if Davis wants to be resentenced under the amended Guidelines, as made
retroactive, a motion for reduction of sentence under 18 U.S.C. § 3582(c) is the
appropriate remedy.
      Following Davis’s resentencing, the Supreme Court held, in Kimbrough v.
United States, 128 S.Ct. 558, 575 (2007), that a district court did not abuse its
discretion when it determined that the cocaine base/powder disparity under the
Guidelines resulted “in a sentence ‘greater than necessary’ to achieve § 3553(a)’s
purposes, even in a mine-run case.”    Thus, Kimbrough made it clear that the
district court had discretion to impose a sentence below the guidelines range to
account for the disparity in its consideration of the § 3553(a) factors. Id.
      During the period between Davis’s conviction on February 4, 2005, and his
resentencing on May 11, 2007, the United States Sentencing Commission
submitted to Congress the proposed amendments to the Guidelines with respect
to the base offense level for offenses involving cocaine base.        Sentencing
Guidelines for the United States Courts, 72 Fed. Reg. 28558, 28558 (May 21,
2007)(noting the submission of the proposed amendments to Congress on May
1, 2007), 28571-72 (the proposed amendments). The goal of the amendments

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was to reduce the disparity between offense levels for cocaine base and powder
cocaine and to do so by reducing the base offense levels for the various cocaine
base weight categories. See 72 Fed. Reg. 28572-73. The proposed guidelines
amendments became effective on November 1, 2007, after Davis’s resentencing.
72 Fed. Reg. 28558; United States Sentencing Commission Guidelines Manual,
Supp. to Appendix C, amendments 706, 711; U.S.S.G. § 2D1.1(c); see 28 U.S.C.
§ 994(p). Effective March 3, 2008, while this direct appeal was pending, the
Commission amended the policy statement in § 1B1.10 to make the amendments
to the base offense levels for cocaine base retroactive. 73 Fed. Reg. 217; U.S.S.G.
§ 1B1.10. See U.S.S.G. App. C, amend. 713, at 56 (Supp. Mar. 3, 2008). The
Guidelines provide that a court may reduce a defendant’s term of imprisonment
following the procedures outlined in § 3582(c)(2). Id.
      After United States v. Booker, 543 U.S. 220 (2005), which rendered the
previously mandatory Sentencing Guidelines advisory, this court reviews
sentences for reasonableness. United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). In Gall v. United States, 128 S.Ct. 586 (2007), the Supreme
Court bifurcated the process for reviewing a sentence: (1) appellate courts must
ensure that the district court did not commit a significant procedural error, such
as treating the Guidelines as mandatory or failing to properly calculate the
guidelines range; and (2) if the sentence is procedurally sound, the appellate
court must then consider the “substantive reasonableness” of the sentence under
an abuse-of-discretion standard. Id. (citing Gall, 128 S.Ct. at 597). This court
continues to review a district court’s interpretation or application of the
Guidelines de novo and its factual findings for clear error. Id.
      In United States v. Burns, this court addressed the impact of Kimbrough
and the cocaine base guidelines amendments on pre-amendment sentences.
United States v. Burns, 526 F.3d 852 (2008). Burns was convicted of one count
of conspiracy to possess with intent to distribute cocaine base and two counts of

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aiding and abetting the distribution of cocaine base. Id. at 855-56. Burns sought
a downward departure based on the cocaine base/powder disparity before and at
his sentencing hearing, which was held before the opinion issued in Kimbrough
and before the guidelines amendment. Id. at 860. The district court denied the
departure, stating:
      [T]he guidelines are what the guidelines are today . . . The Court
      finds that the facts do not warrant a downward departure . . . for
      taking into consideration the difference between crack cocaine
      crimes under the guidelines and cocaine offenses under the
      guidelines as a decision that’s been made by the Congress of the
      United States and the Sentencing Commission. . . . The Court finds
      it has no-limited discretion, if any. And if I do have discretion, I
      exercise my discretion not to downward depart on that basis.
Id. at 860-61. On appeal, this court determined that the Supreme Court’s
decision in Kimbrough and the cocaine base/powder amendments to the
Guidelines made relevant the district court’s specific statements about its
discretion at sentencing. Id. This court concluded, “[W]e cannot tell from the
record whether, if the judge had known that he could consider the policy
disagreement as an additional factor in the ‘array of factors warranting
consideration’ in his analysis under 8 U.S.C. § 3553(a), it would have affected the
ultimate sentence imposed on Burns.” Id. at 861-62. Therefore, this court
vacated and remanded for the district court to “analyze the Section 3553(a)
factors in light of Kimbrough.” Id. at 862. In three unpublished cases, this court
has similarly remanded for resentencing in light of Kimbrough. See United
States v. Jones, 283 Fed. Appx. 254 (5th Cir. 2008) (unpublished); United States
v. Howard, 280 Fed. Appx. 440 (5th Cir. 2008) (unpublished); United States v.
Ramirez, No. 06-31118 (5th Cir. May 27, 2008) (unpublished).
      Davis raised the issue of the disparity in the district court and requested
that the court consider the disparity as a factor in determining the sentence.
As noted previously, the district court did not comment on the argument at


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sentencing, although it implicitly denied the request by instead departing
upward from the guidelines range. The district court stated,
           [W]hen I consider all of the factors that the Court is obligated to
           consider in sentencing, I’m satisfied that an upward departure in
           this case is the appropriate thing to do and would be necessary to
           achieve a reasonable sentence, taking into account all of the factors
           that are to be considered under 18 United States Code, Section
           3553(a).

The district court then explained that it determined an appropriate range of
imprisonment by referencing the ranges under a higher criminal history
category that the court found more representative of Davis’s history and
likelihood of recidivism. Ultimately, the court stated, “[I]n arriving at [the 280-
month] sentence[,] I considered the recommended advisory guideline range, as
well as the statutory concerns listed in 18 United States Code, Section 3553(a)
. . . .”
           As in Burns, it is unclear from the statements made by the district court
at sentencing whether the district court would have imposed the same sentence
had it known that it could consider policy disagreement as a factor along with
the other § 3553(a) factors. See Burns, 526 F.3d at 862. However, this case is
distinguishable from Burns in a significant way. Specifically, while the appeal
was pending and after Kimbrough, Davis filed a pro se § 3582(c)(2) motion based
on the retroactive amendments, and the district court denied the motion.
Although the § 3582(c)(2) motion and order denying it are not part of the record
on appeal, we elect to take judicial notice of the § 3582(c)(2) order, having given
the parties an opportunity to address its significance. See F ED. R. E VID. 201. In
addition, although the district court may not have had jurisdiction to resolve the
motion because Davis’s appeal was pending in this court at the time, the order’s
practical effect is to prove conclusively that any error in the district court’s
sentence is harmless.


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                                   No. 07-10588

      In the denial, the district court did what Davis seeks in this appeal; it
considered the crack amendments when analyzing his sentence. In doing so, the
district court noted that it considered the § 3553(a) factors, public safety issues,
Davis’s post-sentencing conduct, and its own determinations during the original
sentencing hearing. The district court further noted its earlier findings that
Davis’s criminal history was underrepresented and that Davis was likely to
reoffend. The district court further specifically stated that, “[w]hile incarcerated,
defendant has continued to disobey the rules and has shown no respect for
authority. He has given the court no reason to believe he has changed his
behavior; rather, he has only confirmed the court’s findings that he is at a high
risk to commit future crimes.” The district court set out the range of
imprisonment under the amended Guidelines and specifically rejected reducing
Davis’s sentence even with the new guidelines range.
      Therefore, while in other circumstances a remand might be warranted in
light of Burns and Kimbrough, the order denying the § 3582(c)(2) motion clearly
establishes that the district court would not adjust the sentence in light of the
cocaine base/powder disparity given Davis’s criminal history and other
circumstances. Thus, the district court’s order denying the § 3582(c)(2) motion
indicates that the sentence did not result from any purported guidelines error
and therefore need not be vacated. See United States v. Bonilla, 524 F.3d 647,
656-57 (5th Cir. 2008) (holding that procedural error did not require vacating
sentence where the sentence imposed did not result from the guidelines error);
Davis, 478 F.3d at 273 (in context of post-Booker misapplication of the
Guidelines, court looked to whether the sentence resulted from                   the
misapplication, noting pre-Booker harmless error standard); but see United
States v. Mejia-Huerta, 480 F.3d 713, 720 (5th Cir. 2007) (post-Booker case
applying harmless error standard, looking to whether the Government could



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show beyond a reasonable doubt that district court would have imposed same
sentence absent the error).
                                       III.
      Davis’s other challenges to his sentence are without merit. Davis argues
that the district court abused its discretion when it departed upward based on
the underrepresentation of his criminal history and his conduct while in prison.
He asserts that his criminal history was adequately represented by his
classification of category V because his prior convictions were “virtually all for
either misdemeanors or state jail felonies.” Davis also argues that the court
failed to take into account his youth at the time of his prior convictions. Davis
further asserts that the degree of the departure was unreasonable, given the
small amount of cocaine base involved, his age, and the “non-aggravated nature
of his prior convictions.”
      Following Booker, this court has concluded that a sentencing court does
not abuse its discretion in deciding to upwardly depart when its reasons for
doing so (1) advance the objectives set forth in § 3553(a)(2), and (2) are justified
by the facts of the case. United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th
Cir.), cert. denied, 126 S. Ct. 2954 (2006). Section 4A1.3 of the Guidelines
provides for an upward departure when a defendant’s criminal history category
does not represent the seriousness of a defendant’s criminal history or the
likelihood that he will reoffend. Section 3553(a)(2) (A)-(C) instructs sentencing
courts to consider the need for the sentence imposed to reflect the seriousness
of the offense, promote respect for the law, provide just punishment for the
offense, afford adequate deterrence to criminal conduct, and protect the public
from further crimes of the defendant.
      In its detailed explanation of the departure, the district court explained
that it relied on Davis’s extensive criminal history and his post-conviction
conduct. The district court noted Davis’s seven disciplinary infractions while in

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custody, including one that occurred while Davis was awaiting resentencing.
Additionally, the court found that reliable information showed that Davis’s
criminal history substantially underrepresented his criminal history and the
likelihood of recidivism. Although Davis was only 23 years old,“at the time of his
original sentence he had a five-year span of criminal conduct including seven
adult convictions and one juvenile conviction.” Although most of the convictions
were misdemeanors, the district court stated, they were for offenses more serious
than they first appeared. The convictions were for offenses that the district
court determined were serious, involving narcotics, firearms, fleeing from police
and fighting with police.
      Davis does not challenge the reliability of the information on which the
court relied. Rather, he challenges the conclusions the district court drew from
Davis’s conduct and circumstances.       Section 3553(a) specifically permits a
district court to consider “the history and characteristics of the defendant” in
fashioning a sentence. § 3553(a)(1). The statute requires the district court to
set a sentence that promotes “respect for the law” and “protect[s] the public from
further crimes of the defendant.” § 3553(a)(2)(A) and (C). Similarly, section
4A1.3 specifically provides for an upward departure when the district court
determines that a defendant’s criminal history category does not accurately
reflect his history or potential recidivism. In the face of the district court’s
detailed analysis of the factors and Davis’s circumstances, Davis’s conclusory
assertion that the § 3553(a) factors did not justify the departure is insufficient
to show that the district court abused its discretion. See Zuniga-Peralta, 442
F.3d at 347. Davis likewise has not shown that the district court abused its
discretion in the extent of its departure, from the 210-month upper limit of the
guidelines range to 280 months, given the circumstances explained by the
district court. See id. at 347-48 (upholding a departure of almost twice the



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advisory guidelines range given “all of the circumstances”). Thus, Davis has not
shown that his sentence was unreasonable.
                                       IV.
      Davis argues finally that the district court violated his Sixth Amendment
right to a jury by finding facts “essential to the sentence,” including the drug
weight and the firearm possession. This argument is without merit. With the
Guidelines rendered advisory by Booker, “the Sixth Amendment will not impede
a sentencing judge from finding all facts relevant to sentencing.” United States
v. Johnson, 445 F.3d 793, 798 (5th Cir.), cert. denied, 126 S. Ct. 2884 (2006). As
the district court sentenced Davis under an advisory guidelines regime, there
was no Sixth Amendment violation.
                                       V.
      For the foregoing reasons, Davis’s sentence is AFFIRMED.




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