1

The Honorable Ralph R. Erickson, United States District Judge for the District

of North Dakota, sitting by designation.

2

The Honorable Patrick J. Schiltz, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-2093

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota.

Alexisus Jarmon Mosby, *

*

Appellant. * 

___________

Submitted: January 15, 2008

Filed: September 16, 2008

___________

Before COLLOTON and SHEPHERD, Circuit Judges, and ERICKSON,1

 District

Judge.

___________

ERICKSON, District Judge.

This is an appeal from Alexisus Jarmon Mosby’s conviction for possession

of a firearm by a convicted felon. Mosby’s Guideline calculation included a fourlevel enhancement, which resulted in a lower sentencing range than would have

resulted in the absence of the enhancement. At sentencing, the district court2
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departed upward to a sentence within the range that would have been applicable,

absent the enhancement. The defendant appealed, asserting the sentence imposed

is substantively unreasonable. We affirm the judgment of the district court.

I.

In the summer of 2006, Mosby was spotted by Charles Greaves, a

Minneapolis, Minnesota, police officer, outside a Minneapolis night club. Officer

Greaves was responding to a report that a club patron had a gun. As Officer

Greaves approached, Mosby began running. Officer Greaves gave chase. During

the pursuit, Mosby threw a revolver under a vehicle. Mosby was ultimately

apprehended and arrested by Officer Greaves. 

This was not 24-year-old Mosby’s first encounter with the law. Mosby’s

involvement with the criminal justice system began when he was 14 years old with

several car thefts. Mosby’s criminality continued as an adult, and his current

history includes a 1999 felony conviction for theft of a motor vehicle, convictions

in 2000 for felony possession of a controlled substance and misdemeanor

trespassing, and a 2002 conviction for felony attempted possession of a controlled

substance. In 2003, Mosby was convicted of three felonies: fleeing a police

officer, theft of a motor vehicle, and felon in possession of a firearm. 

Mosby was charged in a single-count indictment with unlawful possession

of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mosby

proceeded to trial and was convicted by a jury. 

During Mosby’s sentencing hearing, the district court recognized that if a

four-level enhancement were applied to Mosby’s Guideline calculation under

United States Sentencing Guideline (U.S.S.G.) § 2K2.1(b)(6) for his possession of

a firearm in the 2003 felony fleeing and theft of a motor vehicle convictions, his

sentencing range would ultimately be reduced. The court concluded the
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enhancement was appropriate under our decision in United States v. Davis, 360

F.3d 901 (8th Cir. 2004), and applied it to Mosby’s Guideline calculation. 

The sentencing judge vocalized the absurdity of the result and questioned the

validity of Davis. The United States moved for an upward departure. The court

found that the resulting criminal history score substantially under-represented his

history and failed to recognize the likelihood that he would commit other crimes.

The court granted an upward departure and sentenced Mosby to 108 months

imprisonment. Mosby appealed, arguing the court’s upward departure under

U.S.S.G. § 4A1.3 was improper.

II.

On appeal, a district court’s sentence is reviewed for abuse of discretion.

Gall v. United States, 128 S. Ct. 586, 597 (2007); United States v. Miller, 484 F.3d

968, 970 (8th Cir. 2007) (holding that sentencing departures are reviewed using the

abuse-of-discretion standard). An appellate court’s review is two-pronged: 

It must first ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence – including an explanation for any

deviation from the Guidelines range. Assuming that the district

court’s sentencing decision is procedurally sound, the appellate court

should then consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard. 

Gall, 128 at 597. Although it appears that Mosby concedes the district court

committed no procedural error and only questions the substantive reasonableness

of the sentence, the United States challenges the Guideline calculation, specifically

questioning the validity of Davis. Because it is apparent no other potential for
3

The 2003 motor vehicle theft conviction is a “crime of violence” under §

2K2.1(a)(2) only if it is scoreable for criminal history purposes. U.S.S.G. § 2K2.1

cmt. n.10.

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procedural error occurred in this case, our review on this prong will focus on the

validity of Davis and the resulting four-level enhancement under § 2K2.1(b)(6). 

A.

Davis holds that the four-level enhancement under § 2K2.1(b)(6) for

“possess[ing] any firearm or ammunition in connection with another felony

offense” is applicable in relation to the commission of both contemporaneous and

non-contemporaneous felonies. 360 F.3d at 903. Therefore, an individual who is

sentenced under § 2K2.1 and possessed a firearm in connection with a felony

committed years prior would be subject to the four-level enhancement. Id. In

Davis, this resulted in an increased sentencing range. In the instant case, a lower

sentencing range resulted from this application. 

Mosby’s criminal history included three convictions in 2003 for felony

motor vehicle theft, fleeing, and felon in possession, all stemming from a single

incident. In that case, a loaded, cocked gun “facilitated, or had the potential of

facilitating” the theft and fleeing. See U.S.S.G. § 2K2.1 cmt. n.14(A). Under

Davis, these charges are relevant conduct to the instant offense and trigger the

four-level § 2K2.1(b)(6) enhancement. Applying the enhancement to Mosby’s

base offense level of 20 under § 2K2.1(a)(4)(A), the resulting offense level is 24.

Because the 2003 convictions, as “relevant conduct,” could not be scored for

criminal history purposes, Mosby had eight criminal history points and was in

category IV, with a sentencing range of 77 to 96 months. 

Absent the enhancement, the 2003 convictions would be scoreable. The

total offense level would have remained 24 under § 2K2.1(a)(2),3

 but Mosby’s
4

U.S.S.G. § 2K2.1(b)(5) was renumbered to § 2K2.1(b)(6) and remains

substantively identical.

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criminal history category would be VI after adding six additional points – three for

the 2003 offenses, plus three for committing the instant offense while on probation

and within two years of his release from the 2003 convictions. Thus, he would

have had a sentencing range of 100 to 125 months. 

The sentencing judge struggled with the application of the Guidelines under

Davis but ultimately determined that the enhancement was applicable and the

accurate sentencing range was 77 to 96 months. In Davis, we stated:

Nothing in § 2K2.1(b)(5)4

 expressly precludes its application to

a felony offense that occurred at a time and place distinct from the

offense of conviction. . . . A plain reading [of Guideline language]

here is consonant with the Guideline’s far-reaching purpose of

accounting for the increased risk of violence when those committing

felonies possess firearms. 

. . . . 

[W]e do not agree that the relevant Guideline provisions are

ambiguous. The phrase “felony offense” is elsewhere defined in §

2K2.1(b)(5), and use of the word “another” here does not admit of two

reasonable interpretations. 

Davis, 360 F.3d at 903 (citations omitted). 

We conclude that the district court properly calculated the offense level and

criminal history, consistent with the Guidelines and Davis. The resulting sentence

is, therefore, procedurally sound.
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B.

Mosby challenges the substantive reasonableness of the sentence,

characterizing the departure as one made “in response to the application of a

provision which the district court determined applied, but with which it did not

agree.” Departures or variances based on disagreement with a provision are not

necessarily forbidden. See Kimbrough v. United States, 128 S. Ct. 558, 573-74

(2007) (holding that a district court was permitted to grant a downward variance in

a crack cocaine case based in part on its disagreement with the Guidelines’ 100-to1 ratio for crack to powder cocaine sentences). In this case, however, we do not

interpret the court’s actions as responsive to disagreement with the provisions.

When granting any departure, a sentencing judge “must give serious

consideration to the extent of [the] departure from the Guidelines and must explain

his conclusion that an unusually lenient or an unusually harsh sentence is

appropriate in a particular case with sufficient justifications.” Gall, 128 S. Ct. at

594. Upward departures under § 4A1.3(a) are applicable if “reliable information

indicates the defendant’s criminal history category substantially under-represents

the seriousness of the defendant’s criminal history or the likelihood that the

defendant will commit other crimes.” We have previously concluded that upward

departures for inadequate criminal history may be reasonable when prior

convictions could not be scored for purposes of determining a criminal history

category. See United States v. Hill, 513 F.3d 894, 899 (8th Cir. 2008); Miller, 484

F.3d at 971.

Mosby’s criminal history exhibits reckless disregard for the law and the

safety of others. The 2003 convictions for fleeing, motor vehicle theft, and

possession of a firearm stemmed from a single incident in which Mosby engaged

the police in a car chase and leapt from a moving vehicle while carrying a loaded,

cocked firearm. He was sentenced to 60 months imprisonment and had been 
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released for approximately one month when the instant offense occurred. As it

imposed the sentence, the district court observed:

Mr. Mosby has a lengthy criminal record. He has been

convicted twice for auto theft. He has been convicted of drug crimes.

He has been convicted of crimes involving guns. He has repeatedly

committed crimes while on probation or parole. Indeed as [the

prosecutor] pointed out, he committed this very crime, being a felon

in possession of a firearm, while he was on probation from his last

conviction for being a felon in possession of a firearm.

The court stated that criminal history category IV failed to reflect the seriousness

of Mosby’s criminal history or his risk of recidivism. Consequently, the court

ruled that “[c]ategory VI accurately reflects the fact that Mr. Mosby is a repeat

offender who has not been deterred from committing crime by his multiple

convictions and jail sentences.” 

We conclude this sentence is substantively reasonable. The district court

found that Mosby, a repeat offender, posed a high risk of recidivism and showed

unwillingness or inability to obey conditions of probation or parole. See Hill, 513

F.3d at 899. That the court expressed its disagreement with the proper sentencing

range is irrelevant. The Guidelines are advisory, and our review is limited to

determining whether a sentence is reasonable. Gall, 128 S. Ct. at 594. We cannot

conclude that the district court abused its discretion in departing above the

advisory range.

III.

Therefore, we affirm.

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