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United States v. Davis

United States Court of Appeals, Eighth Circuit

June 12, 2017

United States of America Plaintiff- Appellee
v.
Jody Lee Davis Defendant-Appellant

          Submitted: May 9, 2017

         Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

          Before RILEY and BEAM, Circuit Judges, and ROSSITER, [1] District Judge.

          ROSSITER, District Judge.

         Jody Lee Davis ("Davis") appeals from the district court's[2] decision to impose a 210-month prison sentence and recommend that his federal sentence be served consecutively to potential future state court sentences. For the reasons stated below, we affirm Davis's sentence.

         I. BACKGROUND

         In 2012 and 2013, Davis was convicted in Iowa state court of numerous crimes, including one count of identity theft, one count of burglary, two counts of theft, and ten counts of forgery. On February 4, 2015, an Iowa state court sentenced Davis to suspended sentences for all of those crimes and placed him on probation.

         After being indicted in federal court on methamphetamine charges, Davis pled guilty on November 16, 2016 to Attempted Manufacture and Aiding and Abetting the Manufacture of Methamphetamine. Davis was sentenced on April 12, 2016. At the time of sentencing, probation-revocation proceedings were pending in Iowa state court based on the methamphetamine arrest. After discussing the 18 U.S.C. § 3553(a) factors, the district court noted that state-court probation revocation proceedings were pending but specifically stated, "I did not consider the pending cases in deciding on a disposition." The district court sentenced Davis to 210 months in prison, recommending to the Bureau of Prisons that the sentence be served consecutively to any term of state imprisonment resulting from the probation revocation.

         It is clear that the district court has the discretion to "order that [Davis's] sentence run consecutively to his anticipated state sentence in the probation revocation proceeding." Setser v. United States, 566 U.S. 231, 244-45 (2012). This case presents the novel issue of whether it is error for a district court to explicitly not consider the possibility of a state court sentence when ordering that a federal sentence be consecutive to any possible state-court sentence.

         II. DISCUSSION

         Davis argues his sentence is substantively unreasonable because the district court failed to consider the potential state prison time. The government claims that Davis's argument is really one of procedural error.[3] After careful review, we conclude the district court neither procedurally erred in determining Davis's sentence nor imposed a substantively unreasonable sentence.

         A. Standards of Review

         Because Davis failed to object to any procedural error, we review for plain error. United States v. Cottrell, 853 F.3d 459, 462 (8th Cir. 2017). "To establish plain error, [a defendant] must prove (1) there was error, (2) the error was plain, and (3) the error affected his substantial rights." Id. (quoting United States v. Grimes, 702 F.3d 460, 470 (8th Cir. 2012)).

         "We review the substantive unreasonableness of sentences under a standard akin to an abuse-of-discretion standard, cognizant that it will be the unusual case when we reverse a district court sentence-whether within, above, or below the applicable Guidelines range-as substantively unreasonable." United States v. Edwards, 820 F.3d 362, 366 (8th Cir. 2016) (quoting United States v. Sayles, 754 F.3d 564, 567 (8th Cir. 2014)). "A sentence may be unreasonable if the district court fails to consider a relevant factor which should have received significant weight; ...


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