United States v. Davis

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0297p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 05-6259
v.
,
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LONNIE DAVIS, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 04-20439—Samuel H. Mays, Jr., District Judge.
Submitted: August 9, 2006
Decided and Filed: August 15, 2006
Before: MOORE and SUTTON, Circuit Judges; KATZ, District Judge.*
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COUNSEL
ON BRIEF: April R. Goode, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE
WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. Camille R.
McMullen, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Lonnie Davis appeals his
sentence for escaping from a community corrections center in violation of 18 U.S.C. § 751(a). Davis
asserts that the district court erred by applying a reasonableness standard in determining his sentence
rather than “impos[ing] a sentence sufficient, but not greater than necessary, to comply with the
purposes set forth in [18 U.S.C. § 3553(a)(2)]” as prescribed by 18 U.S.C. § 3553(a). Davis also
argues that in imposing his thirty-seven-month sentence, the lowest within the recommended U.S.
Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) range, the district court did not adequately
consider “the nature and circumstances of the offense” — namely, its nonviolent character — under
§ 3553(a)(1). Because no specific magic words are necessary to render a sentence reasonable, and
the district court imposed a reasonable sentence after thorough consideration of the § 3553(a) factors
as required following United States v. Booker, 543 U.S. 220 (2005), we AFFIRM Davis’s sentence.

*
The Honorable David A. Katz, United States District Judge for the Northern District of Ohio, sitting by
designation.

1
No. 05-6259 United States v. Davis Page 2

I. BACKGROUND
On May 28, 1993, Davis was sentenced to a 151-month prison term for bank robbery in
violation of 18 U.S.C. § 2113. Joint Appendix (“J.A.”) at 35 (Presentence Investigation Report
(“PSR”) ¶ 4). On April 30, 2004, Davis was transferred from the Federal Bureau of Prisons to
Dismas Charities Community Corrections Center (“DCCCC”) in Memphis, Tennessee. J.A. at 35
(PSR ¶ 5). Despite his October 26, 2004 release date, Davis left DCCCC without authority on May
10, 2004. Id. The United States Marshals Service arrested Davis on May 21, 2004. J.A. at 35 (PSR
¶ 6).
Davis pleaded guilty to one count of escape under 18 U.S.C. § 751(a). J.A. at 35 (PSR ¶ 3).
The PSR, relying on the 2004 Guidelines, noted a base offense level of thirteen under U.S.S.G.
§ 2P1.1(a)(1). J.A. at 36 (PSR ¶ 11). This was decreased four levels pursuant to § 2P1.1(b)(3)
because Davis “escaped from non-secure custody of a community corrections center.” J.A. at 36
(PSR ¶ 12). Because (1) Davis was over eighteen at the time of his escape, (2) the district court
considered escape in violation of 18 U.S.C. § 751(a) to be a crime of violence,1 and (3) Davis had
three prior robbery felony convictions, Davis was sentenced as a career offender under
§ 4B1.1(b)(F), which raised his offense level to seventeen.2 J.A. at 37 (PSR ¶ 19). Davis’s offense
level was reduced by three levels for acceptance of responsibility under § 3E1.1, resulting in a final
offense-level calculation of fourteen. J.A. at 37 (PSR ¶¶ 20-21).
Davis objected to the recommended sentence because he believed that he should receive a
below-Guidelines sentence on the basis of a non-Guidelines departure (i.e., variance) due to the
nonviolent nature of his offense under 18 U.S.C. § 3553(a). J.A. at 24-26 (Sentencing Tr. at 9-11).
Specifically, Davis requested that the court exercise its discretion and not subject his sentence to the
career-offender enhancement because, although the district court treated his escape as a crime of
violence under the Guidelines, Davis’s escape was nonviolent. J.A. at 24-26 (Sentencing Tr. at 9-
11).
The district court sentenced Davis to thirty-seven months of imprisonment, the lowest
sentence within the recommended Guidelines range, followed by two years of supervised release.
J.A. at 30 (Sentencing Tr. at 20). The court explained:
So, is a Guideline sentence reasonable in this case? Is a non Guideline
sentence reasonable? If so, what would a reasonable non Guideline sentence be?
I’ve said what the Guideline sentence is for incarceration purposes, 37 to 46 months.
For supervised release purposes, 2 to 5 years. What’s the nature of this offense? The
defendant is in the position where he has served a considerable period of time. A
considerable period of time. He had a significant prior offense. He has a long
criminal history, much of it minor, but some of it is significant.

1
Although Davis did not object to the district court’s conclusion on this ground, this is not a settled point of
law. Our only treatment of this precise question — whether escape in violation of 18 U.S.C. § 751(a) is a crime of
violence — has been in two unpublished opinions, each of which has concluded that this offense is a crime of violence.
See United States v. Anglin, 169 F. App’x 971, 975 (6th Cir. 2006) (unpublished opinion); United States v. Rodgers, No.
99-5776, 2000 WL 1434706, at *5 (6th Cir. Sept. 19, 2000) (unpublished opinion). We have also concluded, in a
published opinion, that escape in violation of a Tennessee state statute categorically constituted a crime of violence under
the Guidelines. United States v. Harris, 165 F.3d 1062, 1068 (6th Cir. 1999).
2
Davis also objected to the PSR because he believed that 18 U.S.C. § 751(a)’s five-year statutory maximum
for his offense meant that his offense level was governed by U.S.S.G. § 4B1.1(b)(G), which covers offenses with a
statutory maximum of “[m]ore than 1 year, but less than 5 years,” as opposed to § 4B1.1(b)(F), which covers offenses
with a statutory maximum of “5 years or more, but less than 10 years.” J.A. at 19-24 (Sentencing Tr. at 4-9). The district
court overruled this objection, J.A. at 20-22 (Sentencing Tr. at 5-7), and Davis does not press it on appeal.
No. 05-6259 United States v. Davis Page 3

In any event, he served his time of incarceration and he had been placed in
a community placement. Originally sentenced to 151 months for bank robbery in
1993. In 2004 he went to Dismas Charities Community Correction Center. That was
on April the 30th. He was going to be released on October 26th of 2004. And on
May 10, after he had been there a little over a week, he left, or escaped, as the report
says in paragraph five, page three. Picked up his belongings and left at 10:40 a.m.
Eleven days later on May 21, got picked up by the Marshal’s Service in Nashville
where he was with his money and his papers. Why he did that is unfathomable to
me. But given his record and what he was in for originally, I don’t have any problem
at all with his being classified as a career offender. And I’m confident of my legal
ruling on it. That’s the way it is. But the question is, is that reasonable. I believe
it is reasonable given the circumstances under which the defendant was serving. In
looking over his criminal history, which is set out at length in the Presentence
Report, particularly the fact that he had been sentenced for bank robbery.
What about the seriousness of the offense? The offense is not as serious as
some offenses that one might see. But to escape from custody in that circumstance
is still serious. He didn’t escape violently. He didn’t escape from a correctional
institution, which is why his offense level is where it is. If he had escaped violently
or if he had escaped from a correctional institution, he would have a much higher
offense level. So that’s already taken account of in the Guideline calculation. But
the need to promote respect for the law here is great. One simply can’t have people
who decide on their own that they are going to ignore court orders and walk off from
institutions to which they have been committed.
Is a Guideline range a just punishment? It seems to me it is. It seems to me
that it affords adequate deterrence.
What about protecting the public from further crimes of this defendant? The
defendant, one would have thought, after having been sentenced to a hundred and
fifty one months, I believe it was, would have thought at some length — perhaps he
did — before he simply walked off from the institution where he was confined.
Is this defendant likely to — is his offense conduct likely to recur, is there
going to recidivism here? The criminal history suggests that there would be. The
defendant’s approach to today suggest[s] that there would be. The defendant’s
attitude is that he hasn’t done anything very serious, all he did was, you know,
violate the law, walk off and fail to complete his sentence. I consider that very
serious. And I see nothing in this record that suggests to me that on release, the
defendant would do anything other than what he has already done.
As far as sentencing disparities, I believe following the Guidelines in this
case would be the best way to avoid unwarranted sentencing disparities. And there
is no restitution issue here that I’m aware of.
So for all those reasons, I believe a Guideline sentence [in] this case is
reasonable, and that’s what I intend to impose. I do agree, however, with [Davis’s
counsel] and with the government that a low range sentence is appropriate in this
case, because the defendant at one time, at least, acknowledged his guilt and entered
a plea and accepted responsibility for his conduct. So he got a two level reduction
for full acceptance and he got a three level — he is about to get a three level
reduction if the government makes the motion. . . . And I think it is also worth
considering in acceptance of responsibility going to the low end of the Guideline
Range, which is 37 months.
J.A. at 26-30 (Sentencing Tr. at 16-20).
Davis then filed this timely appeal.
No. 05-6259 United States v. Davis Page 4

II. THE DISTRICT COURT’S REFERENCE TO REASONABLENESS
Davis argues that the district court erred in its sentencing procedure by applying a
reasonableness standard rather than a sufficient-but-not-greater-than-necessary standard under
§ 3553(a). The record indicates that the district judge may have thought his obligation was to
impose a reasonable sentence. For example, the district judge ponders: “So, is a Guideline sentence
reasonable in this case? Is a non Guideline sentence reasonable? If so, what would a reasonable non
Guideline sentence be?” J.A. at 26 (Sentencing Tr. at 16). He also asks, “But the question is, is that
reasonable. I believe it is reasonable given the circumstances under which the defendant was
serving.” J.A. at 27 (Sentencing Tr. at 17). Finally, he concludes that “for all those reasons, I
believe a Guideline sentence [in] this case is reasonable, and that’s what I intend to impose.” J.A.
at 29 (Sentencing Tr. at 19).
We have made clear
that a district court’s job is not to impose a “reasonable” sentence. Rather, a district
court’s mandate is to impose “a sentence sufficient, but not greater than necessary,
to comply with the purposes” of section 3553(a)(2). Reasonableness is the appellate
standard of review in judging whether a district court has accomplished its task.
United States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006); accord United States v. Yopp, 453
F.3d 770, 774 (6th Cir. 2006); United States v. Vonner, 452 F.3d 560, 565 n.2 (6th Cir. 2006).
Therefore, at points during the sentencing the district court stated the wrong standard to describe the
task before it — “impos[ing] a sentence sufficient but not greater than necessary” under § 3553(a).
These misstatements of the district court’s sentencing task do not necessarily imply a
reversible sentencing error. After Booker, we review a sentence for reasonableness, that is, “whether
the district court’s sentence is a reasonable application of Section 3553(a).” Vonner, 452 F.3d at
565; United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005), cert. denied, --- U.S. --- , 126 S. Ct.
1110 (2006). This review is not restricted to the length of the sentence — substantive
reasonableness — but also incorporates a procedural component: whether the district court
adequately considered and expressed its application of the relevant factors listed in 18 U.S.C.
§ 3553(a) to permit “‘meaningful appellate review.’” Vonner, 452 F.3d at 567; accord United States
v. Richardson, 437 F.3d 550, 553 (6th Cir. 2006). Although “no ‘ritual incantation’ of the
[§ 3553(a)] factors is required,” Vonner, 452 F.3d at 568, “there must still be sufficient evidence in
the record to affirmatively demonstrate the court’s consideration of them.” United States v.
McBride, 434 F.3d 470, 476 n.3 (6th Cir. 2006).
Within-Guidelines sentences such as Davis’s are afforded a rebuttable presumption of
reasonableness. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). This presumption is
rebutted, however, when there is an “absence of evidence in the record that the district court
considered all of the relevant section 3553(a) factors.” Foreman, 436 F.3d at 644. There is no such
shortcoming here. As quoted above, after calculating the appropriate Guidelines range under
18 U.S.C. § 3553(a)(4)(A), the district court addressed each of the relevant § 3553(a) factors,
including “the nature and circumstances of the offense,” 18 U.S.C. § 3553(a)(1); “the history and
characteristics of the defendant,” id.; “the need for the sentence imposed — (A) to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (B) to afford adequate deterrence to criminal conduct; [and] (C) to protect the public from
further crimes of the defendant,” id. § 3553(a)(2); “the need to avoid unwarranted sentence
disparities,” id. § 3553(a)(6); and “the need to provide restitution,” id. § 3553(a)(7). The district
court’s thorough consideration of the § 3553(a) factors certainly allows for intelligent appellate
review. Vonner, 452 F.3d at 567-68; Richardson, 437 F.3d at 553.
No. 05-6259 United States v. Davis Page 5

The rebuttable presumption of reasonableness also will not save a within-Guidelines sentence
“if there is no evidence that the district court followed its statutory mandate to ‘impose a sentence
sufficient, but not greater than necessary’ to comply with the purposes of sentencing in section
3553(a)(2).” Foreman, 436 F.3d at 644. In this case, despite the district court’s repeated
enunciation of “reasonableness,” it nonetheless appears that the district court was concerned with
imposing a sentence that was sufficient but no greater than necessary to comply with § 3553(a). The
district judge balanced the seriousness of the offense and the need to promote respect for the law,
provide just punishment and adequate deterrence, and protect the public, each of which he believed
militated against a below-Guidelines sentence, with the mitigating factor of Davis’s acceptance of
responsibility, which he believed pointed to a sentence at the bottom of the Guidelines range. J.A.
at 26-30 (Sentencing Tr. at 16-20).
Moreover, even when a Guidelines sentence is imposed, if “a defendant raises a particular
argument in seeking a lower sentence, the record must reflect both that the district judge considered
the defendant’s argument and that the judge explained the basis for rejecting it.” Richardson, 437
F.3d at 554. The district court considered Davis’s argument regarding the nonviolent nature of his
escape, but explained that he would still sentence Davis within the Guidelines range because the
court considered Davis’s offense to be quite serious and thus promoting respect for the law required
such a sentence. J.A. at 28-29 (Sentencing Tr. at 18-19). The district court also explained that the
significance of Davis’s prior offenses, the concern of recidivism, and the need to protect the public
were all factors that counseled against a below-Guidelines sentence. Id.
Finally, the “rebuttable presumption [of reasonableness] does not relieve the sentencing court
of its obligation to explain to the parties and the reviewing court its reasons for imposing a particular
sentence [within the Guidelines].” Richardson, 437 F.3d at 554. The district court met its obligation
on this ground by explaining that a sentence at “the low end of the Guideline Range, which is 37
months,” was warranted due to Davis’s acceptance of responsibility. J.A. at 30 (Sentencing Tr. at
20).
It is worthy of note that Vonner indicated that the district court that imposed the sentence at
issue in that case “appear[ed] more focused on whether the sentence given is reasonable rather than
whether the sentence complies with the mandate of Section 3553(a),” but did not suggest that this
in and of itself would constitute reversible error. Vonner, 452 F.3d at 565 n.2. Given our repeated
admonition that the focus of sentencing “is on substance rather than form” and that sentencing does
not require any particular “magic words,” id. at 568 & n.4; accord McBride, 434 F.3d at 476 n.3,
the district court’s reference to a reasonableness standard does not render Davis’s sentence
unreasonable in the face of the district court’s satisfaction of the post-Booker sentencing mandates.
III. “NATURE AND CONDITIONS” FACTOR UNDER 18 U.S.C. § 3553(a)(1)
Davis also argues that his sentence is unreasonable because a thirty-seven month sentence
does not adequately take into account “the nature and circumstances of the offense” — specifically,
the nonviolent character of his escape — as required by 18 U.S.C. § 3553(a)(1).3 The district judge
did consider the nature and circumstances of the offense. He acknowledged that Davis “didn’t
escape violently,” J.A. at 28 (Sentencing Tr. at 18), but went on to express that “[t]he defendant’s

3
Davis relies on Harris, 165 F.3d at 1068, to argue that despite the categorical nature of the crime-of-violence
classification, the district court could properly consider his actual conduct in determining his sentence. Harris suggested
“that a limited inquiry into his actual conduct at the time of his escape . . ., coupled with other relevant facts, might
appropriately lead the sentencing court to conclude that a downward departure is warranted here.” Id. Harris was
decided before Booker. Davis no longer needs to rely on Harris and Guidelines departures; post-Booker, a district court
has the discretion to impose a below-Guidelines sentence based on consideration of the actual nature of Davis’s offense
under 18 U.S.C. § 3553(a)(1).
No. 05-6259 United States v. Davis Page 6

attitude is that he hasn’t done anything very serious, all he did was, you know, violate the law, walk
off and fail to complete his sentence. I consider that very serious.” J.A. at 28-29 (Sentencing Tr.
at 18-19). The district court underscored his view of the seriousness of the offense in stating that
“the need to promote respect for the law here is great” because “[o]ne simply can’t have people who
decide on their own that they are going to ignore court orders and walk off from institutions to which
they have been committed.” J.A. at 28 (Sentencing Tr. at 18). Although Davis happens to disagree
with this perception of his escape, there is nothing unreasonable about the district court’s view of
the seriousness of a repeat felon escaping from custody.
In any event, Davis could have objected to his career-offender enhancement on the ground
that his escape should not have been considered a crime of violence, see U.S.S.G. § 4B1.1(a)
(requiring for career-offender status that “the instant offense of conviction is a felony that is either
a crime of violence or a controlled substance offense”), as we have not yet addressed this particular
question in a published opinion. See United States v. Anglin, 169 F. App’x 971, 975 (6th Cir. 2006)
(unpublished opinion) (holding that escape in violation of 18 U.S.C. § 751(a) is a crime of violence
and acknowledging that only an unpublished decision of this court had previously so held). Davis
did not do so. It was not unreasonable for the district court not to sentence Davis below the
recommended Guidelines range because his escape was nonviolent given that Davis did not object
to the career-offender enhancement on this basis and especially given the other reasonable
justifications the district court offered for Davis’s sentence. See J.A. at 26-30 (Sentencing Tr. at 16-
20) (citing the need to promote respect for the law, protect the public, and provide adequate
deterrence, as well as the significance of Davis’s prior offenses).
Davis further claims that certain statements by the district court evidence that the court did
not adequately consider the nature and circumstances of his offense. Davis takes issue with the
district court’s statement that the Guidelines accounted for the nonviolent nature of his escape and
the fact that he escaped from a community corrections center. See J.A. at 28 (Sentencing Tr. at 18).
The district court presumably was referring to the four-level decrease for escaping from the
nonsecure custody of a community corrections center under U.S.S.G. § 2P1.1(b)(3) that Davis
received and the five-level increase for use of force under § 2P1.1(b)(1) that Davis did not receive.
Davis argues that despite these considerations, the Guidelines did not adequately take account of the
circumstances of his offense because the four-level decrease under § 2P1.1(b)(3) (from thirteen to
nine) had no impact on his sentence due to his increased offense level (from nine to seventeen) for
being a career offender under U.S.S.G. § 4B1.1.
Davis’s argument ignores two important points. First, had Davis committed a violent escape
from a secure custodial institution, his offense level under the Guidelines would have been eighteen
— greater than his actual offense level of seventeen (before the acceptance of responsibility
reduction). In this sense, the Guidelines did account for his offense conduct. Second, the fact that
being a career offender increased Davis’s sentence in such a way as to negate the effect of the four-
level decrease under § 2P1.1(b)(3) is merely a result of the particular balance of interests that the
Guidelines have struck. Under the Guidelines, career-offender criminal history can significantly
increase a sentence, even when the offense level for the instant offense is minor. The district judge
did not err in relying on the particular balance of interests struck by the Guidelines given that he also
thoroughly considered the § 3553(a) factors in determining Davis’s sentence. Moreover, the district
court was aware that following the Guidelines in this case resulted in at least a thirty-seven month
sentence. The court explained why such a sentence was appropriate, and we do not deem this
determination unreasonable.4

4
The government reads Davis’s brief to this court as arguing, for the first time, that he is entitled to a
Guidelines-based downward departure based on the nonviolent nature of his offense. This is not the case. In fact, Davis
acknowledges that the district court’s decision not to apply a Guidelines departure is generally unreviewable. McBride,
434 F.3d at 476. Rather, Davis merely argues, as he did before the district court, see J.A. at 25 (Sentencing Tr. at 10),
No. 05-6259 United States v. Davis Page 7

IV. CONCLUSION
Because the district court adequately considered each of the 18 U.S.C. § 3553(a) factors in
imposing an ultimately reasonable sentence, we AFFIRM the sentence imposed by the district court.

that he should have been sentenced below the recommended Guidelines range given the nonviolent nature of his escape,
and that the district court’s failure to so sentence him rendered his sentence unreasonable. The confusion on the part of
the government may have arisen as a result of Davis’s use of the general terminology “departure” instead of the more
specific “non-Guidelines departure” or the alternative “variance.” See McBride, 434 F.3d at 477 n.5 (contrasting
“Guideline departures,” i.e., departures based on Chapter 5 of the Guidelines, with “Non-Guideline departures,” i.e.,
sentences below the recommended Guidelines on the basis of the § 3553(a) factors); United States v. Jones, 445 F.3d
865, 873 n.1 (6th Cir. 2006) (Moore, J., dissenting) (highlighting these terms and also suggesting “variance” as a “useful”
alternative to distinguish non-Guidelines departures from Guidelines departures). The government’s perception that
Davis is arguing for a Guidelines departure may also stem from Davis’s reliance on Harris, 165 F.3d at 1068, a pre-
Booker case that mentioned the possibility of a Guidelines departure on the basis of the defendant’s actual escape
conduct. In any event, the panel need not consider the government’s arguments regarding a Guidelines-based downward
departure, as Davis did not raise this point below, and we have considered this matter as part of our review of the
sentence for reasonableness. See Appellee Br. at 9, 14.