United States Court of Appeals

for the Fifth Circuit

No. 19-11188

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Khayree Dewayne Davis, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:19-CR-80-1

Before Davis, Jones, and Elrod, Circuit Judges.

Per Curiam:*

Khayree Dewayne Davis pleaded guilty to being a felon in possession 

of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court imposed 

an above-guidelines sentence of 80 months of imprisonment followed by a 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 30, 2021

Lyle W. Cayce

Clerk

Case: 19-11188 Document: 00516149305 Page: 1 Date Filed: 12/30/2021
No. 19-11188

2

three-year term of supervised release, pointing to Davis’s “tremendous” 

criminal history.

Davis argues that his 80-month sentence, which is an upward variance 

from the guidelines range of 57 to 71 months, is substantively unreasonable

and greater than necessary to achieve the goals of 18 U.S.C. § 3553(a). He 

claims that in varying from the guidelines range, the district court overstated 

the seriousness of his criminal history and disregarded his history of mental 

illness. We review Davis’s preserved challenge to the substantive 

reasonableness of his sentence for abuse of discretion. See Gall v. United 

States, 552 U.S. 38, 51 (2007).

The district court varied upward in Davis’s case because it considered 

his criminal history to be understated, noting that “a number of the charges 

against [him] didn’t result in convictions” and thus did not receive criminal 

history points. “It is well-established that prior criminal conduct not 

resulting in a conviction may be considered by the sentencing judge.” United 

States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). Although “it is 

error for a district court to consider a defendant’s ‘bare arrest record’ at 

sentencing,” United States v. Johnson, 648 F.3d 273, 278 (5th Cir. 2011), that 

is not what happened in Davis’s case. The paragraphs of the presentence 

report that the district court considered included either a detailed description 

of the police offense report or information from other records “bear[ing] 

sufficient indicia of reliability,” that explained “when, where, and how” 

Davis engaged in criminal conduct leading to his arrest. United States v. 

Fields, 932 F.3d 316, 320 (5th Cir. 2019). Accordingly, the district court did 

not err in considering Davis’s prior criminal conduct not resulting in a 

conviction—in addition to his various other criminal convictions and 

mitigating evidence—in selecting a sentence. See United States v. Harris, 702 

F.3d 226, 231 (5th Cir. 2012).

Case: 19-11188 Document: 00516149305 Page: 2 Date Filed: 12/30/2021
No. 19-11188

3

Though Davis complains that the district court failed to weigh his 

mental health issues as a mitigating factor at sentencing, the record reflects 

that the court was fully aware of Davis’s mental health background. 

Although Davis “may disagree with how the district court balanced the 

§ 3553(a) factors, [his] argument that these factors should have been weighed 

differently is not a sufficient ground for reversal.” United States v. Malone, 

828 F.3d 331, 342 (5th Cir. 2016).

Based on the foregoing, the judgment of the district court is 

AFFIRMED.

Case: 19-11188 Document: 00516149305 Page: 3 Date Filed: 12/30/2021