Pursuant to 5TH CIR. R. 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 CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10588

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

SHANNON DEWAYNE DAVIS

Defendant-Appellant

Appeal from the United States District Court 

for the Northern District of Texas, Fort Worth Division 

No. 4:04-CR-00199-1

Before DAVIS, SMITH, and OWEN, Circuit Judges.

PER CURIAM:*

Defendant Shannon Dewayne Davis appeals his sentence upon remand on

the basis that the district court failed to consider the amendments to the

guidelines eliminating the disparity in sentences for cocaine powder and cocaine

base. Based on our conclusion that the sentence imposed did not result from any

guidelines error, we affirm. 

United States Court of Appeals

Fifth Circuit

F I L E D

March 6, 2009

Charles R. Fulbruge III

Clerk
No. 07-10588

2

I. 

In 2005, Davis pleaded guilty to one count of distributing more than 10

grams of cocaine base. The district court departed upward from the guidelines

range and sentenced Davis to 293 months of imprisonment. United States v.

Davis, 478 F.3d 266, 270 (5th Cir. 2007). On appeal, this court vacated the

sentence and remanded for resentencing based only on the quantity of drugs

that Davis intended to provide in the narcotics transaction. Id. at 271-74. Based

on a recalculated drug weight and the Sentencing Guidelines in effect at that

time, the PSR calculated a total offense level of 31. With his criminal history

category of V, Davis’s guidelines range of imprisonment was168-210 months. 

At the resentencing hearing, Davis argued that the district court should

take into account that, under then-proposed amendments to the Guidelines

reducing the base offense level for cocaine base offenses, his total offense level

would be 29, rather than 31. Davis argued that the imprisonment range

provided by the then-effective Guidelines was per se unreasonable as evidenced

by the proposed amendments. The district court did not explicitly address the

cocaine base/powder disparity and the proposed amendments to the Guidelines.

Instead, it announced its decision to upwardly depart from the guidelines range.

In support of the upward departure, the district concluded that the Sentencing

Guidelines did not adequately address Davis’s criminal history category and his

post-sentencing conduct. Stating that it was following the instructions of

§ 4A1.3(a)(4)(A) to depart upwardly, the district court “used the criminal history

category applicable to defendants whose criminal history or likelihood to

recidivate most closely resembles that of the defendant.” Finding a level VI

criminal history category still insufficient in Davis’s circumstances, the district

court “moved incrementally down the sentencing table to an offense level 33.” 

That offense level and criminal history category resulted in a range of 235 to 293
No. 07-10588

3

months of imprisonment. The district court sentenced Davis to 280 months of

imprisonment. Davis timely appealed.

II. 

Davis’s principal argument on appeal is that his sentence is unreasonable

because the district court did not take the cocaine base/powder disparity into

consideration in setting the sentence. Davis argues that the Sentencing

Commission’s promulgation of the amendments to the cocaine base offense level

reflected the Commission’s determination that the Guidelines, prior to the

amendments, were not reasonable. The Government counters that the district

court was required to apply the Guidelines in effect at the time of sentencing and

that, if Davis wants to be resentenced under the amended Guidelines, as made

retroactive, a motion for reduction of sentence under 18 U.S.C. § 3582(c) is the

appropriate remedy. 

Following Davis’s resentencing, the Supreme Court held, in Kimbrough v.

United States, 128 S.Ct. 558, 575 (2007), that a district court did not abuse its

discretion when it determined that the cocaine base/powder disparity under the

Guidelines resulted “in a sentence ‘greater than necessary’ to achieve § 3553(a)’s

purposes, even in a mine-run case.” Thus, Kimbrough made it clear that the

district court had discretion to impose a sentence below the guidelines range to

account for the disparity in its consideration of the § 3553(a) factors. Id. 

During the period between Davis’s conviction on February 4, 2005, and his

resentencing on May 11, 2007, the United States Sentencing Commission

submitted to Congress the proposed amendments to the Guidelines with respect

to the base offense level for offenses involving cocaine base. Sentencing

Guidelines for the United States Courts, 72 Fed. Reg. 28558, 28558 (May 21,

2007)(noting the submission of the proposed amendments to Congress on May

1, 2007), 28571-72 (the proposed amendments). The goal of the amendments
No. 07-10588

4

was to reduce the disparity between offense levels for cocaine base and powder

cocaine and to do so by reducing the base offense levels for the various cocaine

base weight categories. See 72 Fed. Reg. 28572-73. The proposed guidelines

amendments became effective on November 1, 2007, after Davis’s resentencing.

72 Fed. Reg. 28558; United States Sentencing Commission Guidelines Manual,

Supp. to Appendix C, amendments 706, 711; U.S.S.G. § 2D1.1(c); see 28 U.S.C.

§ 994(p). Effective March 3, 2008, while this direct appeal was pending, the

Commission amended the policy statement in § 1B1.10 to make the amendments

to the base offense levels for cocaine base retroactive. 73 Fed. Reg. 217; U.S.S.G.

§ 1B1.10. See U.S.S.G. App. C, amend. 713, at 56 (Supp. Mar. 3, 2008). The

Guidelines provide that a court may reduce a defendant’s term of imprisonment

following the procedures outlined in § 3582(c)(2). Id.

After United States v. Booker, 543 U.S. 220 (2005), which rendered the

previously mandatory Sentencing Guidelines advisory, this court reviews

sentences for reasonableness. United States v. Cisneros-Gutierrez, 517 F.3d 751,

764 (5th Cir. 2008). In Gall v. United States, 128 S.Ct. 586 (2007), the Supreme

Court bifurcated the process for reviewing a sentence: (1) appellate courts must

ensure that the district court did not commit a significant procedural error, such

as treating the Guidelines as mandatory or failing to properly calculate the

guidelines range; and (2) if the sentence is procedurally sound, the appellate

court must then consider the “substantive reasonableness” of the sentence under

an abuse-of-discretion standard. Id. (citing Gall, 128 S.Ct. at 597). This court

continues to review a district court’s interpretation or application of the

Guidelines de novo and its factual findings for clear error. Id. 

In United States v. Burns, this court addressed the impact of Kimbrough

and the cocaine base guidelines amendments on pre-amendment sentences.

United States v. Burns, 526 F.3d 852 (2008). Burns was convicted of one count

of conspiracy to possess with intent to distribute cocaine base and two counts of
No. 07-10588

5

aiding and abetting the distribution of cocaine base. Id. at 855-56. Burns sought

a downward departure based on the cocaine base/powder disparity before and at

his sentencing hearing, which was held before the opinion issued in Kimbrough

and before the guidelines amendment. Id. at 860. The district court denied the

departure, stating:

[T]he guidelines are what the guidelines are today . . . The Court

finds that the facts do not warrant a downward departure . . . for

taking into consideration the difference between crack cocaine

crimes under the guidelines and cocaine offenses under the

guidelines as a decision that’s been made by the Congress of the

United States and the Sentencing Commission. . . . The Court finds

it has no-limited discretion, if any. And if I do have discretion, I

exercise my discretion not to downward depart on that basis.

Id. at 860-61. On appeal, this court determined that the Supreme Court’s

decision in Kimbrough and the cocaine base/powder amendments to the

Guidelines made relevant the district court’s specific statements about its

discretion at sentencing. Id. This court concluded, “[W]e cannot tell from the

record whether, if the judge had known that he could consider the policy

disagreement as an additional factor in the ‘array of factors warranting

consideration’ in his analysis under 8 U.S.C. § 3553(a), it would have affected the

ultimate sentence imposed on Burns.” Id. at 861-62. Therefore, this court

vacated and remanded for the district court to “analyze the Section 3553(a)

factors in light of Kimbrough.” Id. at 862. In three unpublished cases, this court

has similarly remanded for resentencing in light of Kimbrough. See United

States v. Jones, 283 Fed. Appx. 254 (5th Cir. 2008) (unpublished); United States

v. Howard, 280 Fed. Appx. 440 (5th Cir. 2008) (unpublished); United States v.

Ramirez, No. 06-31118 (5th Cir. May 27, 2008) (unpublished). 

Davis raised the issue of the disparity in the district court and requested

that the court consider the disparity as a factor in determining the sentence. 

As noted previously, the district court did not comment on the argument at
No. 07-10588

6

sentencing, although it implicitly denied the request by instead departing

upward from the guidelines range. The district court stated, 

[W]hen I consider all of the factors that the Court is obligated to

consider in sentencing, I’m satisfied that an upward departure in

this case is the appropriate thing to do and would be necessary to

achieve a reasonable sentence, taking into account all of the factors

that are to be considered under 18 United States Code, Section

3553(a).

The district court then explained that it determined an appropriate range of

imprisonment by referencing the ranges under a higher criminal history

category that the court found more representative of Davis’s history and

likelihood of recidivism. Ultimately, the court stated, “[I]n arriving at [the 280-

month] sentence[,] I considered the recommended advisory guideline range, as

well as the statutory concerns listed in 18 United States Code, Section 3553(a)

. . . .” 

As in Burns, it is unclear from the statements made by the district court

at sentencing whether the district court would have imposed the same sentence

had it known that it could consider policy disagreement as a factor along with

the other § 3553(a) factors. See Burns, 526 F.3d at 862. However, this case is

distinguishable from Burns in a significant way. Specifically, while the appeal

was pending and after Kimbrough, Davis filed a pro se § 3582(c)(2) motion based

on the retroactive amendments, and the district court denied the motion.

Although the § 3582(c)(2) motion and order denying it are not part of the record

on appeal, we elect to take judicial notice of the § 3582(c)(2) order, having given

the parties an opportunity to address its significance. See FED. R. EVID. 201. In

addition, although the district court may not have had jurisdiction to resolve the

motion because Davis’s appeal was pending in this court at the time, the order’s

practical effect is to prove conclusively that any error in the district court’s

sentence is harmless. 
No. 07-10588

7

In the denial, the district court did what Davis seeks in this appeal; it

considered the crack amendments when analyzing his sentence. In doing so, the

district court noted that it considered the § 3553(a) factors, public safety issues,

Davis’s post-sentencing conduct, and its own determinations during the original

sentencing hearing. The district court further noted its earlier findings that

Davis’s criminal history was underrepresented and that Davis was likely to

reoffend. The district court further specifically stated that, “[w]hile incarcerated,

defendant has continued to disobey the rules and has shown no respect for

authority. He has given the court no reason to believe he has changed his

behavior; rather, he has only confirmed the court’s findings that he is at a high

risk to commit future crimes.” The district court set out the range of

imprisonment under the amended Guidelines and specifically rejected reducing

Davis’s sentence even with the new guidelines range. 

Therefore, while in other circumstances a remand might be warranted in

light of Burns and Kimbrough, the order denying the § 3582(c)(2) motion clearly

establishes that the district court would not adjust the sentence in light of the

cocaine base/powder disparity given Davis’s criminal history and other

circumstances. Thus, the district court’s order denying the § 3582(c)(2) motion

indicates that the sentence did not result from any purported guidelines error

and therefore need not be vacated. See United States v. Bonilla, 524 F.3d 647,

656-57 (5th Cir. 2008) (holding that procedural error did not require vacating

sentence where the sentence imposed did not result from the guidelines error);

Davis, 478 F.3d at 273 (in context of post-Booker misapplication of the

Guidelines, court looked to whether the sentence resulted from the

misapplication, noting pre-Booker harmless error standard); but see United

States v. Mejia-Huerta, 480 F.3d 713, 720 (5th Cir. 2007) (post-Booker case

applying harmless error standard, looking to whether the Government could
No. 07-10588

8

show beyond a reasonable doubt that district court would have imposed same

sentence absent the error).

III. 

Davis’s other challenges to his sentence are without merit. Davis argues

that the district court abused its discretion when it departed upward based on

the underrepresentation of his criminal history and his conduct while in prison.

He asserts that his criminal history was adequately represented by his

classification of category V because his prior convictions were “virtually all for

either misdemeanors or state jail felonies.” Davis also argues that the court

failed to take into account his youth at the time of his prior convictions. Davis

further asserts that the degree of the departure was unreasonable, given the

small amount of cocaine base involved, his age, and the “non-aggravated nature

of his prior convictions.” 

Following Booker, this court has concluded that a sentencing court does

not abuse its discretion in deciding to upwardly depart when its reasons for

doing so (1) advance the objectives set forth in § 3553(a)(2), and (2) are justified

by the facts of the case. United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th

Cir.), cert. denied, 126 S. Ct. 2954 (2006). Section 4A1.3 of the Guidelines

provides for an upward departure when a defendant’s criminal history category

does not represent the seriousness of a defendant’s criminal history or the

likelihood that he will reoffend. Section 3553(a)(2) (A)-(C) instructs sentencing

courts to consider the need for the sentence imposed to reflect the seriousness

of the offense, promote respect for the law, provide just punishment for the

offense, afford adequate deterrence to criminal conduct, and protect the public

from further crimes of the defendant.

In its detailed explanation of the departure, the district court explained

that it relied on Davis’s extensive criminal history and his post-conviction

conduct. The district court noted Davis’s seven disciplinary infractions while in
No. 07-10588

9

custody, including one that occurred while Davis was awaiting resentencing. 

Additionally, the court found that reliable information showed that Davis’s

criminal history substantially underrepresented his criminal history and the

likelihood of recidivism. Although Davis was only 23 years old,“at the time of his

original sentence he had a five-year span of criminal conduct including seven

adult convictions and one juvenile conviction.” Although most of the convictions

were misdemeanors, the district court stated, they were for offenses more serious

than they first appeared. The convictions were for offenses that the district

court determined were serious, involving narcotics, firearms, fleeing from police

and fighting with police. 

Davis does not challenge the reliability of the information on which the

court relied. Rather, he challenges the conclusions the district court drew from

Davis’s conduct and circumstances. Section 3553(a) specifically permits a

district court to consider “the history and characteristics of the defendant” in

fashioning a sentence. § 3553(a)(1). The statute requires the district court to

set a sentence that promotes “respect for the law” and “protect[s] the public from

further crimes of the defendant.” § 3553(a)(2)(A) and (C). Similarly, section

4A1.3 specifically provides for an upward departure when the district court

determines that a defendant’s criminal history category does not accurately

reflect his history or potential recidivism. In the face of the district court’s

detailed analysis of the factors and Davis’s circumstances, Davis’s conclusory

assertion that the § 3553(a) factors did not justify the departure is insufficient

to show that the district court abused its discretion. See Zuniga-Peralta, 442

F.3d at 347. Davis likewise has not shown that the district court abused its

discretion in the extent of its departure, from the 210-month upper limit of the

guidelines range to 280 months, given the circumstances explained by the

district court. See id. at 347-48 (upholding a departure of almost twice the
No. 07-10588

10

advisory guidelines range given “all of the circumstances”). Thus, Davis has not

shown that his sentence was unreasonable.

IV.

Davis argues finally that the district court violated his Sixth Amendment

right to a jury by finding facts “essential to the sentence,” including the drug

weight and the firearm possession. This argument is without merit. With the

Guidelines rendered advisory by Booker, “the Sixth Amendment will not impede

a sentencing judge from finding all facts relevant to sentencing.” United States

v. Johnson, 445 F.3d 793, 798 (5th Cir.), cert. denied, 126 S. Ct. 2884 (2006). As

the district court sentenced Davis under an advisory guidelines regime, there

was no Sixth Amendment violation.

V. 

For the foregoing reasons, Davis’s sentence is AFFIRMED.