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March 10, 2026 Get Citation Alerts Download PDF Add Note

United States v. Derrick Davis

Court of Appeals for the Seventh Circuit

• Citations: None known
• Docket Number: 23-1249

• Judges: Sykes

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (11.3K)

• PDF

Combined Opinion

                        by [Diane S. Sykes](https://www.courtlistener.com/person/3156/diane-s-sykes/)

In the

United States Court of Appeals
for the Seventh Circuit

---

No. 23-1249
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

DERRICK DAVIS,
Defendant-Appellant.

---

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 20-CR-603 — Ronald A. Guzmán, Judge.

---

ARGUED FEBRUARY 22, 2024 — DECIDED MARCH 10, 2026

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Before RIPPLE, SYKES, and ST. EVE, Circuit Judges.
SYKES, Circuit Judge. On a summer afternoon in 2019,
Chicago police responded to a report of shots fired on the
city’s west side. At the scene they saw a two-car collision and
signs of a shooting: one of the crashed cars, a minivan, had
obvious bullet damage. The driver, later identified as Derrick
Davis, got out of the minivan and walked toward a parked
car nearby.
2 No. 23-1249

An eyewitness warned the officers that the driver of the
minivan had a gun. When Davis reached the rear passenger
side of the parked car, the officers stopped him and found a
loaded Beretta handgun that he had tossed underneath the
car.
Davis has a lengthy felony record and was on state parole
at the time of these events. He was arrested and transported
to the Cook County Jail. Soon after, he called a friend from jail
and discussed the shooting and crash. He gave a detailed
description of his route to the scene, making clear that he had
driven there intentionally and had not been present by
happenstance. He bragged about running a red light and stop
sign on the way, saying: “Could not stop me bro. Could
nothing stop me.” He also mimicked the sound of gunfire.
More than a year after his arrest, a federal grand jury
indicted Davis for possessing a firearm as a felon in violation
of 18 U.S.C. § 922 (g)(1). He eventually pleaded guilty. The
probation officer who prepared the presentence report
(“PSR”) considered an enhancement under the Sentencing
Guidelines for possessing the firearm in connection with
another felony offense—namely, the shoot-out. See U.S.S.G.
§ 2K2.1(b)(6)(B) (2021). But she ultimately recommended
against it based on insufficient evidence. The district judge
adopted the PSR’s recommendations and imposed an above-
Guidelines sentence of 84 months in prison.
When this case was first before us, we noted a procedural
anomaly in Davis’s sentencing hearing: after adopting the
PSR’s factual findings—including the finding that insufficient
evidence tied Davis to the shooting—the judge credited the
government’s argument that the jail call confirmed Davis’s
participation in the shoot-out. Based on that irreconcilable
No. 23-1249 3

conflict, we vacated the sentence and remanded for resentenc-
ing. United States v. Davis, 43 F.4th 683, 688 (7th Cir. 2022).
The judge again accepted the PSR’s findings and reim-
posed the 84-month sentence. Davis again appeals, asserting
that the judge made the same procedural error. He also raises
a substantive claim, arguing that because the parties now
agree that he was not involved in the shoot-out, there was no
basis for imposing another 84-month sentence.
Neither challenge has merit. This time the judge clearly
explained why he thought the jail phone call was significant:
it showed that Davis had intentionally placed himself at the
scene of a violent confrontation, armed with a loaded gun,
and then bragged about it afterward. His reckless conduct
and cavalier attitude—together with his extensive criminal
history—influenced the judge’s decision to reimpose the
above-Guidelines sentence. Nothing in the judge’s remarks at
resentencing is inconsistent with the PSR, and the 84-month
sentence is otherwise amply justified. We affirm.
I. Background
On the afternoon of June 15, 2019, Chicago police
responded to a reported shoot-out on the city’s west side at
the intersection of South Sacramento Boulevard and West
Fillmore Street. When they arrived at the scene, they saw that
a Chrysler minivan had just collided with another vehicle.
The minivan had a bullet hole in the windshield and a
shattered rear window. A bystander told the officers that the
driver of the minivan had a gun.
An officer who was already at the scene saw the driver,
Derrick Davis, step out of the minivan and start walking
toward a white Nissan sedan that was parked next to it. As
4 No. 23-1249

Davis reached the rear passenger side of the Nissan, the
officers detained him and searched the area around the car.
They recovered a Beretta 9mm semiautomatic pistol
underneath the Nissan next to where Davis stood. The gun
was loaded with 11 rounds, including one in the chamber.
Davis’s criminal record includes multiple felony
convictions, and he was on parole for a state offense. The
officers arrested him and took him to the Cook County Jail.
About a week later, Davis called a friend from the jail and told
him about the shooting and the crash. The friend asked if he
had been “seeing red and all.” Davis responded:
I swear to God, bro. Could not stop me bro.
Could nothing stop me. I ran the stop sign, ran
the red light … . All the way to the crib, all the
way back over there, bro. That’s how I knew I
was going to jail, bro. … I ran right past. I show
the blinker, like letting them know where I’m
going. Then I come all the way around to
California, through the park, back of the park.
Come out Roosevelt. Hit down Mozart. Took
Mozart all the way to Fillmore … come up to
Fillmore, straight down there … [sound of
pretend gunfire]. Five minutes, all that in five
minutes’ span.
Davis initially faced state charges but was later referred to
federal authorities for possible prosecution. About 15 months
after his arrest, a federal grand jury returned an indictment
charging him with possessing a firearm as a felon in violation
of § 922(g)(1). Law enforcement was ultimately unable to
identify those responsible for the shooting, so the state
charges against Davis were dismissed.
No. 23-1249 5

Davis eventually pleaded guilty to the § 922(g)(1) charge
pursuant to a plea agreement in which he admitted that he
knowingly possessed the Beretta 9mm handgun at the scene
of the shooting and crash. He also admitted that he threw the
gun under the parked Nissan to hide it from police. The plea
agreement described the parties’ preliminary understandings
concerning the anticipated Guidelines sentencing range but
left each side free to recommend an appropriate sentence and
acknowledged that the agreement was not binding on the
court.
Davis’s criminal record includes a felony drug-trafficking
conviction, so to calculate his advisory Guidelines sentencing
range, the probation officer started from a base offense level
of 20. See U.S.S.G. § 2K2.1(a)(4)(A). The probation officer con-
sidered adding a four-level enhancement for possessing the
firearm “in connection with another felony offense”—here,
the shooting. Id. § 2K2.1(b)(6)(B). But she ruled it out based on
insufficient evidence that Davis had fired his gun.
Indeed, in his interview with the probation officer, Davis
had painted quite the opposite picture. He portrayed himself
as a victim caught in the wrong place at the wrong time. More
specifically, he told the probation officer that he had been
driving to work when he heard gunshots. He said he ducked
to avoid being shot, which caused him to crash into the other
vehicle.
Consistent with the understandings reflected in the plea
agreement, the probation officer applied the full three-level
reduction for acceptance of responsibility, which reduced the
offense level to 17. With Davis’s criminal-history category of
VI—the highest under the Guidelines—the sentencing range
6 No. 23-1249

was 51 to 63 months in prison. Neither Davis nor the govern-
ment objected to the Guidelines calculations in the PSR.
The judge accordingly adopted the probation officer’s
findings in full at the beginning of the sentencing hearing. The
government then urged the judge to impose a sentence at the
top of the range based primarily (though not entirely) on
Davis’s jail phone call, which the prosecutor characterized as
evidence that he had actively participated in the shoot-out.
Davis argued for a below-range sentence. The judge agreed
with the government’s argument that the jail phone call
established Davis’s involvement in the shoot-out,
contradicting his earlier acceptance of the PSR’s finding to the
contrary. And largely for that reason, the judge sentenced
Davis to 84 months in prison—21 months above the top of the
advisory range.
We vacated that sentence and remanded for resentencing,
explaining that “the record reflects an inscrutable incon-
sistency in the factual findings on which the judge based his
choice of sentence.” Davis, 43 F.4th at 688. The judge had
adopted the PSR’s finding that insufficient evidence linked
Davis to the shoot-out yet also endorsed the government’s ar-
gument that the jail phone call confirmed his involvement.
Resting the above-Guidelines sentence on such a glaring con-
tradiction was a procedural error warranting resentencing. Id.
at 687–88.
On remand the judge again adopted the PSR—and all its
findings—in full. The judge then invited the parties to present
new arguments about the appropriate sentence. The govern-
ment addressed the factual inconsistency that had plagued
the first sentencing hearing. The prosecutor noted the govern-
ment’s agreement with the PSR’s finding that the evidence
No. 23-1249 7

was insufficient to establish that Davis had discharged his
firearm. And he emphasized that he was not arguing that Da-
vis was involved in the shoot-out. He clarified that the gov-
ernment’s position regarding the jail phone call—both at the
original sentencing hearing and now—was that it refuted Da-
vis’s claim that he was just an innocent bystander. It showed
that he had intentionally driven to the area of the shooting,
armed with his Beretta pistol and ready to use it. And alt-
hough the evidence was insufficient to establish that Davis
had fired his gun, the prosecutor argued that his reckless con-
duct justified the original sentence of 84 months. He urged the
judge to reimpose it.
The judge asked the prosecutor why he was deviating
from his original recommendation of a 63-month sentence.
The prosecutor replied that his new recommendation was in-
fluenced by the judge’s initial decision to impose an above-
Guidelines sentence, which the government now thought was
well justified. He also said that the government’s change in
position was prompted by “how the facts played out at the
initial sentencing hearing.”
With considerable justification, Davis’s attorney criticized
the prosecutor for glossing over the fact that he had previ-
ously claimed that the jail phone call was clear evidence of
Davis’s involvement in the shoot-out. Accusing the govern-
ment of “flip-flopping” for no good reason—or only feeble
reasons—she emphasized that nothing about the call had
changed, nor had additional evidence been introduced to sub-
stantiate it. The call could be interpreted in any number of
ways, she added, but the government was essentially trying
to smuggle in the four-level Guidelines enhancement that the
8 No. 23-1249

probation office had declined to recommend. She urged the
judge to impose a within-Guidelines sentence.
The judge began his sentencing remarks by reviewing
Davis’s personal circumstances and lengthy criminal history.
Davis had been in and out of prison since turning 18 in 2002,
and his criminal history occupied several pages of the PSR.
The judge then turned to the jail call, noting that although it
seemed clear that Davis was “insinuating, if not actually
saying, that he was involved in a shootout,” the call was not
enough to confirm his participation, and the evidence was
otherwise insufficient to establish that Davis had fired his
gun.
The judge explained that the call was important for a dif-
ferent reason: it exposed Davis’s state of mind. More specifi-
cally:
The excitement in his voice is unmistakable
when he describes his reckless drive, running
stop signs or streetlights to arm himself and re-
turning to the scene of the confrontation. It’s
clear that he is proud of this. It’s clear that he is
boasting about doing this. It is clear that in his
mind this was a really good thing to do.
In short, the key point was that Davis had no appreciation for
the seriousness of his “profoundly dangerous” conduct. And
that, the judge said, “is the importance of this conversation,
not whether he fired his weapon or not.”
Because Davis had repeatedly disregarded “what is good
and right,” the judge determined that he posed a danger to
the community and was resistant to rehabilitation. The judge
thus concluded that the advisory range of 51 to 63 months
No. 23-1249 9

remained inadequate and reimposed the above-Guidelines
sentence of 84 months.
II. Discussion
Davis returns with two challenges to the reimposed 84-
month sentence, one procedural and one substantive. His pro-
cedural claim is a reprise of his first appeal: he argues that the
judge committed the same error by imposing an above-
Guidelines sentence based on contradictory findings about
his role in the shoot-out. His second claim is that the sentence
is substantively unreasonable because the parties agreed at
resentencing that he had not discharged his gun, yet the judge
reimposed the same 84-month sentence anyway.
There was no repetition of the prior procedural error.
Unlike Davis’s first sentencing hearing, this one was
procedurally sound. The judge did not, as Davis contends,
rely on impermissible “speculation or unfounded
allegations” about his role in the shoot-out. United States v.
Halliday, 672 F.3d 462, 475 (7th Cir. 2012) (quotation omitted).
Rather, the judge reimposed the same above-Guidelines
sentence because of Davis’s callous disregard for the law as
reflected in his long criminal history and—more relevant
here—the jail phone call.
This time the judge carefully explained the significance of
the jail phone call. He made clear that he did not construe it
as evidence that Davis had actually fired his gun; rather, he
considered the call significant because it demonstrated
Davis’s reckless disregard for the law and the safety of others.
It established that he had intentionally placed himself at the
scene of a violent confrontation armed with a loaded
10 No. 23-1249

handgun; it also showed that he was thrilled about breaking
the law.
Davis challenges the judge’s characterization of the jail
call, insisting that it is susceptible to multiple interpretations
and might be better understood as an exaggerated (or even
false) version of events designed to boost his reputation with
his friend at the other end of the line. That strikes us as im-
plausible, but the key point for our purposes is that after lis-
tening to the call and reading a transcript of it, the judge
concluded otherwise. It is a fundamental principle of sentenc-
ing law that the trial court is in a superior position to find
facts, assess their import, and choose an appropriate sentence.
Gall v. United States, 552 U.S. 38, 51 (2007). Our review is there-
fore deferential: we will not reverse a sentencing judge’s fac-
tual findings absent clear error. United States v. Dennis,
119 F.4th 1103, 1109 (7th Cir. 2024). It was not error, much less
clear error, for the judge to take Davis’s boasting at face value.
Davis focuses on a single comment nested within the
judge’s explanation of the importance of the jail call: the judge
said that Davis’s detailed narrative of his route to the scene
and mimicking of gunfire “insinuated” that he had fired his
gun. In Davis’s view, this comment confirms that the judge
yet again rested his sentence on inconsistent findings about
his role in the shoot-out.
That contention cannot be squared with the record taken
as a whole. Immediately following this statement, the judge
twice disclaimed any finding that Davis participated in the
shoot-out and reiterated his agreement with the parties and
the PSR that the evidence was insufficient to show that Davis
No. 23-1249 11

had actually fired his gun. 1 Having reviewed the judge’s
statement in context and the record in full, “[w]e see no rea-
son not to take the court at its word.” United States v. Stinefast,
724 F.3d 925, 931 (7th Cir. 2013).
Besides, the judge also cited Davis’s extensive criminal
history as a basis for the choice of sentence. As the judge
noted, Davis’s record spans more than two decades and fea-
tures multiple serious crimes, including drug trafficking, flee-
ing from law enforcement, domestic battery, and aggravated
use of a weapon. And despite multiple opportunities for re-
form and rehabilitation, Davis had not ceased his criminal
conduct. Rather, he took pride in continuing it. The judge thus
determined that Davis had difficulty discerning “what is
good and right.” Davis has given us no reason to second-
guess that conclusion.
That brings us to Davis’s substantive challenge. Repack-
aging many of the arguments we’ve already addressed, Davis
contends that the judge lacked any reasonable basis for im-
posing an identical 84-month sentence on remand. At the ini-
tial sentencing, the judge rested this sentence largely on the
contradictory findings concerning Davis’s role in the shoot-
out. On resentencing the parties agreed that he had played no
such role. Davis accuses the judge of unreasonably failing to
adjust the original sentence downward to reflect this modi-
fied understanding of his culpability.

1 Davis seems to argue that this conclusion can’t be reconciled with the

judge’s earlier description of the phone call. We disagree. Both things can
be true at once: first, the call can be understood to suggest that Davis was
implicated in the shooting; and second, the evidence as a whole—includ-
ing the call—is insufficient to confirm his participation in it.
12 No. 23-1249

As noted, district judges have broad discretion over sen-
tencing decisions, and if a sentence is procedurally sound, we
review it under a deferential standard of reasonableness.
United States v. Ingram, 40 F.4th 791, 796 (7th Cir. 2022). Claims
of substantive error are reviewed for abuse of discretion, and
reversal is inappropriate unless the sentence “falls outside the
broad range of objectively reasonable sentences in the circum-
stances.” United States v. Wood, 31 F.4th 593, 600 (7th Cir. 2022)
(quotation omitted). “Substantive reasonableness occupies a
range, not a point, and an above-Guideline sentence is neither
presumptively nor absolutely unreasonable.” Id. (alteration
and quotation omitted). And “[w]e take care not to substitute
our judgment for that of the district court, which is better sit-
uated to make individualized sentencing decisions.” Id. (quo-
tation omitted).
The judge was well within his discretion to reimpose the
84-month above-Guidelines sentence based on Davis’s persis-
tent disregard for the law as reflected in his troubling criminal
history and the boastful jail call. True, the ground had shifted
in Davis’s favor between the first and second sentencing hear-
ings: the jail call was no longer treated as evidence of his par-
ticipation in the shoot-out. Perhaps that change created an
expectation of a reduced sentence. No matter. When we va-
cate a defendant’s sentence in its entirety, resentencing occurs
“on a clean slate.” Krieger v. United States, 842 F.3d 490, 505
(7th Cir. 2016); see United States v. Mobley, 833 F.3d 797, 802
(7th Cir. 2016) (“[T]he posture of the case on a full remand is
just as if sentence has not yet been pronounced … .”). So on
remand the judge may “hear new evidence or arguments,” or
he may “reconsider the same evidence and arguments” and
decide to weigh them differently. Mobley, 833 F.3d at 802. Ei-
ther way, the judge retains discretion “to impose the exact
No. 23-1249 13

same sentence as was imposed at the original sentencing hear-
ing.” Id.
These principles resolve Davis’s substantive challenge.
Taking a fresh look at the record and reviewing the sentenc-
ing factors anew, the judge reasonably determined that the
Guidelines range “did not adequately reflect the seriousness
of [Davis’s] conduct.” United States v. Musgraves, 883 F.3d 709,
716 (7th Cir. 2018). Davis has a lengthy and serious criminal
record—many more convictions than necessary to assign a
criminal-history category of VI. And he was proud of his
“profoundly dangerous” conduct. These facts, the judge ex-
plained, made him an unlikely candidate for rehabilitation
and a danger to the public. On this modestly modified analy-
sis, the 84-month sentence remained appropriate. That sen-
tence is not objectively unreasonable, and the judge did not
exceed his broad discretion in reimposing it.
AFFIRMED