NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 21, 2009
Decided May 13, 2009
Before
WILLIAM J. BAUER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐3525
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of
Wisconsin.
v.
No. 08‐CR‐44‐C
CHRISTOPHER L. DAVIS,
Defendant‐Appellant. Barbara B. Crabb,
Chief Judge.
O R D E R
Christopher Davis pleaded guilty to possessing a firearm as a felon. See 18 U.S.C.
§ 922(g)(1). The district court, over Davis’s objection, added four levels to his base offense
level for possessing the firearm in connection with another felony offense—possession with
intent to distribute heroin. The court sentenced Davis to 102 months’ imprisonment, and
Davis now appeals. Because Davis’s only argument would have us overturn the remedial
holding of United States v. Booker, 543 U.S. 220 (2005), we affirm the district court’s
judgment.
No. 08‐3525 Page 2
In March 2008 Madison, Wisconsin police officers stopped a van for veering into
another lane of traffic and failing to properly display its license plate. After the officers
arrested the front‐seat passenger for an outstanding warrant and announced their intent to
search the car, Davis, the van’s driver, sped away from the scene. The officers initially
pursued him but soon disengaged from the chase because of rush hour traffic. They
continued searching for the van at a nearby housing complex and spotted Davis fleeing the
vehicle. Shortly before catching up to Davis, the officers saw him throw a loaded 9mm
pistol to the ground. A subsequent search incident to his arrest revealed seven “gem”
packs, each containing 1/10 of a gram of heroin.
Davis later told the officers that he had purchased the van from his ex‐girlfriend and
that the gun belonged to her. When questioned two days later, the ex‐girlfriend admitted
selling the van to Davis, but claimed that the gun had been stolen a few days earlier.
Soon thereafter Davis reached a plea agreement with the government. The probation
office then prepared a presentence investigation report, which calculated Davis’s total
offense level at 25 and his criminal history category at V, resulting in a recommended
guidelines imprisonment range of 100 to 120 months. Davis, though, objected to the
probation officer’s decision to add four levels to his base offense level for possessing the
gun in connection with another felony offense—possession with intent to distribute heroin.
He argued that the four‐level adjustment was not appropriate because he had not intended
to sell the heroin; rather, he had purchased the heroin for his own use.
The district court rejected Davis’s objection, finding that the government had proven
by a preponderance of the evidence that he was selling the heroin. The court noted that
Davis had a history of selling heroin, had told others that he did not enjoy using heroin
himself, and was caught with seven “gem” packs of the drug. Noting that Davis remained
a danger to the community and that previous attempts at deterrence had not worked, see 18
U.S.C. § 3553(a), the court sentenced Davis to 102 months’ imprisonment and three years’
supervised release.
Davis makes only one argument on appeal—he contends that a district court may
not make factual determinations regarding uncharged crimes, such as his four‐level
adjustment for possession with intent to distribute heroin, because doing so violates the
constitutional right to a jury trial and due process. In particular, he argues that the district
court’s application of Booker’s remedial holding, which rendered the sentencing guidelines
advisory, see 543 U.S. at 233‐34; see also United States v. Wilson, 502 F.3d 718, 721 (7th Cir.
2007), exposed him to a longer maximum sentence in violation of unspecified constitutional
rights. Davis, recognizing that this argument is bound to fail, admits that “it is not the role
No. 08‐3525 Page 3
of this Court to overrule [Booker],” but states that he filed this appeal “in anticipation of such
an overruling by the Supreme Court.”
As Davis recognizes, his argument would have us overturn the remedial holding of
Booker, something we may not do. See, e.g., United States v. Santiago, 495 F.3d 820, 824 (7th
Cir. 2007); Wilson, 502 F.3d at 721. Not only did the Supreme Court instruct that its Sixth
Amendment and remedial holdings in Booker be applied “to all cases on direct review,”
Booker, 543 U.S. at 268; see United States v. Jamison, 416 F.3d 538, 539 (7th Cir. 2005), but more
recently in Rita v. United States, 127 S. Ct. 2456 (2007), the Court reiterated that the Sixth
Amendment does not forbid a sentencing court from taking into account factual matters not
determined by a jury, id. at 2465‐66.
Accordingly, we AFFIRM Davis’s sentence.