NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0657n.06 No. 10-5755 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. J OHNNI E BENJ I MAN DAV I S, I I , Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF TEN

NESSEE

BEF ORE: BATCHEL DER, Chief J udg e; GRI FF I N, Circuit J udg e; COHN, District Judge. *

PER CURI AM. J ohnnie Benjiman Davis, I I , appea ls the 420-month sentence imposed by the district court on re mand for r esente ncing . For the re asons set for

th below, we a ffirm. I n 2007, a fede ral g rand jury charged Davis in connec tion with four arme d robber ies

co m m itted over a two-we ek period. Davis pleade d g uilty to two counts of using and car ry ing a firea rm during and in rela tion to a crime of violence in violation of 18 U.S.C. § 924(c)

. Davis’s g uideline sentenc e was the statutory minimum of thirty -two y ear s (384 months) of imprisonment. See USSG § 2K2.4(b). The go v ernment asked the district court to sentenc e Davis above the statutory minimum beca

use, four day s befor e h i s co-de fenda nt’s trial, Davis rec anted his prior

s t at em en t s about the co-de fenda nt’s involvement in the robber ies. The district court ag ree d and,

The Honora

ble Aver n Cohn, Senior United States District J udg e for the Easter n District of * Michig an, sitting by

desig nation.No. 10-5755

United States v. Dav is analog izi ng to an enhanc ement for obstruction of justice, sentenc ed Davis to thirty -six months above the statutory

minimum for a

total of 420 months of imprisonment. Davis appea led his sentenc e. Concluding that the district court failed to explain adequately why the s entenc ing fac tors under 18 U.S.C. § 3553 supported a sentenc e longer than t he st atutory

m i n i m u m an d failed to make a clea r finding that the 420-month sentenc e was “not g reater than

nece ssary ” to c omply

with the purposes of § 3553, we vacated Davis’s sentenc e and rema nded for

rese ntencing

. On rema nd, the district court stated that it was taking Davis’s “re canta tion off the table” and taking “a c omplete, fre sh look at the ca se.” Consideringthe § 3553 fa ctors and the seriousness of Davis’s crimes in particula r, the district court noted that the g uideline sentenc e failed to captur e all rele vant conduct in the case by not acc ounting f

or two of the a

rmed robber ies and that the number of victims and the potential for injury made “a strong case for a much highe r sentenc e.” The district court ag ain sentenc ed Davis to 420 months of imprisonment and specific ally found that the sentenc e “wa s sufficient but not g reater than ne cessa ry to comply

with the purposes of” § 3553. This timely appea l followed. We revie w criminal sentenc es for proce dural and substantive

rea sonablene ss “under the defe rential abuse- of-discr etion standard.” United States v. Battaglia , 624 F.3d 348, 350 (6th Cir. 2010). Davis asser ts that his sentenc e is “both proce durally and substantively

unrea sonable,” but he fails to identif y any specific proce dural err or. Davis contends that his “sentence is unrea sonably harsh and g reater than nece ssary to eff ectua te the purposes of justice, ” which is “[t] he essenc e of a substantive-re asonable ness claim.” United States v. Trist an-Madrigal , 601 F.3d 629, 632-33 (6th Cir. 2010)

. “A sentenc e may be considere d substantively unrea sonable -2-No. 10-5755

United States v. Dav is when the district court selec ts a s en t en ce arbitra rily , bases the sentenc e on impermissible fac tors, fails to consider rele vant sentenc ing fac tors, or g ives an unre as o n able amount of weig ht to any pertinent factor.” Unit ed S t a t es v. Conatser , 514 F.3d 508, 520 (6th Cir. 2008). I n revie wing for substantive rea sonablene ss, we “take into acc ount the totality of the circ umstances, i ncluding the extent of any varia

nce from the Guidelines rang e.” Gall v

. United States , 552 U.S. 38, 51 (2007). W e “m ay co n s ider the extent of the deviation, but must g ive due defe renc e to the district court’ s decision that the § 3553(a ) fa ctors, on a w hole, justify the extent of the varia

nce.” Id

. Davis argues that, all other fac tors being the same, the remova l of the impermissible rea son for imposing a sentenc e above the statutory minimum should have resulted in a lower sentenc e. We did not conclude in o u

r p r io r d e c is io n that Davis’s rec antation was an “impermissible” consideration;

we mere ly held that the district court provi ded an inadequa te explanation. Our g ener al rema nd allowed the district court to rese ntence Davis de novo, “which means that the district court may redo t he entire sentenc ing proce ss including considering new evidenc e and issues.” United States v. Moore , 131 F.3d 595, 597 ( 6th Cir. 1997)

. Be cause the district c ourt took “ a complete, fre sh look at the case ,” a lower sentenc e did not nece ssarily follow from removing Davis’s rec antation from the analy sis. Acc ording to Davis, the g uideline sentenc e of the statutory minimum alre ady t ak es into consideration the seriousness of his offe nses. But, as the district court pointed out, t h e g uideline sentenc e did not acc ount for all rele v an t conduct, specific ally the ot her two arme d robber ies. See United States v. Phillips , 516 F.3d 479, 483 n.4 (6th Cir. 2008) (no t i n g t hat conduct underlying counts dismissed pursuant to a plea a g ree ment may be conside red in sente ncing ). -3-No. 10-5755

United States v. Dav is Davis also co n tends that his lack of criminal history supports imposit ion of the statutory minimum

. The district court sp e c if ic ally considere d Davis’s lack of criminal history points, but went

on t o fo cu s on the seriousness of his offe nses. Acc ording to the district court, the seriousness of Davis’s offe nses as well as their esca lation over a short period of time sug g ested the need to aff ord deter renc e and to protec t the public from further crimes. Whil e the commentar y to USSG § 2K2.4 states that “[a] depar

ture may be war

rante d, for exam ple , to ref lect the seriousness of the defe ndant’s criminal history ,” USSG § 2K2.4 comment. (n.2 (b )) (empha sis added) , it does not prec lude an upwar d varia

nce ba sed on fa ctors other than cr iminal hist ory . Finally , Davis argues that the dis t rict court improperly compar ed his sentenc e to the sentenc es of defe ndants with various criminal rec ords who had been convicted of differ ent crimes, rathe r than the sentenc es of “def endants with simil ar rec ords who have been found g uilty of simil ar cond uct.” 18 U.S.C. § 3553(a) (6). The district court looked to its sentenc ing of “hundre ds and hundreds of people who’ve committed violent crimes” and specific ally noted differ ence s in criminal histories. We find no abuse of disc retion in the district court’ s disparity analy sis. Considering the totality

of the c ircumstance s, we a ffirm Da vis’s 420-month sentence

.

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