United States Court of Appeals

For the Eighth Circuit

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No. 22-2631

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United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Deonte Ellison,

lllllllllllllllllllllDefendant - Appellant.

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Appeal from United States District Court 

for the Northern District of Iowa - Eastern

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 Submitted: March 17, 2023

Filed: June 29, 2023

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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges. 

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COLLOTON, Circuit Judge.

Deonte Ellison pleaded guilty to unlawful possession of ammunition as a felon. 

See 18 U.S.C. § 922(g)(1). The district court*

 sentenced him to 296 months and one

*The Honorable C.J. Williams, United States District Judge for the Northern

District of Iowa. 
day of imprisonment. Ellison appeals his sentence, and we conclude that there is no

reversible error. 

This case arises from the killing of Curtis Smothers, Jr., in Dubuque, Iowa. On

July 2, 2020, an argument between Ellison and Smothers escalated and resulted in a

shooting. Ellison shot Smothers twice and killed him. The shooting occurred on a

public sidewalk in a residential neighborhood next to a busy street. Ellison’s wife,

his two-year-old son, and Smothers’s five-year-old daughter were present at the time

of the shooting. 

Ellison was convicted in Iowa state court of voluntary manslaughter and

unlawful possession of a firearm as a felon. The state court sentenced him to ten

years’ imprisonment for voluntary manslaughter and five years for the gun charge. 

In this federal case, Ellison pleaded guilty to one count of unlawful possession

of ammunition by a felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). At sentencing, the

district court concluded that Ellison qualified as an armed career criminal under the

Armed Career Criminal Act (ACCA). See 18 U.S.C. § 924(e)(1). As a result,

because Ellison used his firearm in connection with a crime of violence, the court

determined a base offense level of 34 under the sentencing guidelines. USSG

§ 4B1.4(b)(3). The court decreased the offense level by three for acceptance of

responsibility, id. § 3E1.1, and arrived at a total offense level of 31. With a criminal

history category VI, Ellison’s advisory guideline range was 188 to 235 months’

imprisonment. 

The district court next granted the government’s motion for an upward

departure by two levels based on a resulting death and use of a weapon. See USSG 

§§ 5K2.1, 5K2.6. The departure resulted in a guideline range of 235 to 293 months’

imprisonment. The court then varied upward by the equivalent of one more level

based on 18 U.S.C. § 3553(a), because Ellison’s criminal history category

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substantially understated the likelihood of recidivism and the seriousness of his

criminal history. 

The court stated that without considering Ellison’s previous sentence in state

court, the court would have imposed a sentence of 320 months’ imprisonment. But

the court reduced the term by 729 days for time served on the state manslaughter

conviction. See USSG § 5G1.3(b). The court then imposed a sentence of 296 months

and one day of imprisonment. 

Ellison first challenges his classification as an armed career criminal. Ellison

did not object to this determination at sentencing, so we review for plain error. To

establish plain error warranting relief, Ellison must show that the district court

committed an obvious error that affected his substantial rights and seriously affects

the fairness, integrity, or public reputation of judicial proceedings. United States v.

Olano, 507 U.S. 725, 732-36 (1993).

Under the ACCA, a felon who possesses a firearm is subject to a minimum

sentence of fifteen years’ imprisonment if he has three prior convictions for violent

felonies or serious drug offenses “committed on occasions different from one

another.” 18 U.S.C. § 924(e)(1). The district court determined that Ellison had three

qualifying predicate convictions for possession of heroin with the intent to deliver. 

See Iowa Code § 124.401(1)(c)(1). 

Ellison argues that the Sixth Amendment right to trial by jury forbids the

district court to determine whether he committed three prior felonies on different

occasions. But this contention is contrary to our precedent, and the precedent of

every circuit, so there is no obvious error under current law. See United States v.

Harris, 794 F.3d 885, 887 (8th Cir. 2015).

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Even if there were error, Ellison has not shown prejudice. He did not object

to a paragraph of the presentence report detailing that he committed three drug

felonies on occasions that were separated by at least a week: May 13, May 21, and

May 29, 2014. Those facts are thus admitted. United States v. Menteer, 408 F.3d

445, 446 (8th Cir. 2005) (per curiam). A single factor, especially of time or place,

can decisively differentiate occasions. Wooden v. United States, 142 S. Ct. 1063,

1071 (2022). Even if a jury finding were required, there is no reasonable probability

that a jury would have found that any of these three prior offenses were committed

on the same occasion. There is no plain error warranting relief.

Ellison next disputes the district court’s upward departure under USSG

§ 5K2.1. Section 5K2.1 permits the court to increase a sentence above the authorized

guideline range “[i]f death resulted” from the defendant’s conduct. The policy

statement directs the court to consider the defendant’s state of mind, the degree of

planning or preparation, whether multiple deaths resulted, and the means by which

life was taken. The provision further states that the extent of an increase “should

depend on the dangerousness of the defendant’s conduct, the extent to which death

or serious injury was intended or knowingly risked, and the extent to which the

offense level for the offense of conviction . . . already reflects the risk of personal

injury.”

Ellison argues that the district court impermissibly departed based on factors

other than Smothers’s death. The record refutes his argument. Here, the district court

determined that the departure was warranted because Ellison “discharged a firearm

in a public place, a residential neighborhood next to a busy street, where children and

other innocent people were present.” These are permissible considerations that relate

to the means by which Ellison killed Smothers and the dangerousness of Ellison’s

conduct. The district court did not abuse its discretion in relying on § 5K2.1 to depart

upward.

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Ellison also challenges his sentence as substantively unreasonable. He argues

that the district court’s “dramatic upward variance,” which amounted to only one

level beyond the guideline departure, was not supported by the factors under 18

U.S.C. § 3553(a). We review this question under a “deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 51-52 (2007). Where a sentence is

outside the advisory guideline range, we “may consider the extent of the deviation,

but 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.

The district court sufficiently considered the statutory factors and made an

individualized assessment based on the facts presented. See United States v. Parker,

762 F.3d 801, 812 (8th Cir. 2014). In varying upward, the district court considered

Ellison’s extensive criminal history and concluded that his criminal history category

understated the likelihood of recidivism and the seriousness of his criminal history. 

Ellison’s criminal history scored 24 points under the guidelines, well above the 13

points required for placement in the highest criminal history category. Giving

deference to the district court as required by Gall, we conclude that the one-level

variance and the overall sentence is not unreasonable in light of § 3553(a).

The judgment of the district court is affirmed.

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