Resentencing “Clean Slate” and Above-Guidelines Variances Based on State of Mind Despite Unproven Related Felony — United States v. Derrick Davis (7th Cir. 2026)

A. Precedents Cited

United States v. Davis, 43 F.4th 683 (7th Cir. 2022)

This is the controlling “first Davis appeal.” The Seventh Circuit previously vacated because the sentencing judge adopted the PSR’s finding of insufficient evidence tying Davis to the shoot-out, yet simultaneously credited the government’s argument that the jail call confirmed shoot-out participation—an “inscrutable inconsistency” that tainted the variance decision. In the present opinion, the court uses the prior remand to frame what the district court had to fix: coherent findings and an internally consistent explanation for any variance.

United States v. Halliday, 672 F.3d 462 (7th Cir. 2012)

Cited for the principle that a sentencing judge may not rely on “impermissible speculation or unfounded allegations.” The panel uses Halliday to distinguish this resentencing from the first: the district court did not speculate that Davis fired; it used the call to assess recklessness, intent to place himself at risk, and attitude toward lawbreaking.

Gall v. United States, 552 U.S. 38 (2007)

Gall anchors the appellate posture: district courts are in a superior position to find facts and weigh sentencing considerations, and appellate review is deferential. Here, Gall supports deference to the judge’s interpretation of the jail call and evaluation of its significance under the sentencing factors.

United States v. Dennis, 119 F.4th 1103 (7th Cir. 2024)

Cited for the clear-error standard governing review of sentencing factfinding. The panel relies on Dennis to reject Davis’s argument that the call was too ambiguous to support the judge’s inferences; absent clear error, the district court’s reading stands.

United States v. Stinefast, 724 F.3d 925 (7th Cir. 2013)

Used for the maxim, “We see no reason not to take the court at its word.” The panel invokes Stinefast to credit the district judge’s explicit disclaimers: he did not find Davis fired his weapon and agreed evidence was insufficient, even if some language (“insinuating”) acknowledged the call’s suggestive tone.

United States v. Ingram, 40 F.4th 791 (7th Cir. 2022)

Cited for the proposition that, once procedure is sound, substantive review is under deferential reasonableness principles. Ingram underwrites the panel’s restraint in second-guessing the district court’s individualized judgment.

United States v. Wood, 31 F.4th 593 (7th Cir. 2022)

Wood supplies the modern Seventh Circuit articulation of substantive reasonableness: it is a “range, not a point,” and above-Guidelines sentences are not presumptively unreasonable. The panel applies this to uphold an 84-month sentence despite the Guidelines topping out at 63 months.

Krieger v. United States, 842 F.3d 490 (7th Cir. 2016)

Cited for the “clean slate” principle after a sentence is vacated in its entirety. This matters because Davis argued the judge should have reduced the sentence given the clarified understanding that the shoot-out could not be attributed to him. Krieger supports the notion that resentencing is not a mechanical adjustment but a renewed exercise of discretion.

United States v. Mobley, 833 F.3d 797 (7th Cir. 2016)

Mobley operationalizes “clean slate”: on full remand, the case is as if sentence had not yet been pronounced; the judge may hear new arguments or reconsider old ones, and may even impose the exact same sentence. The panel uses Mobley to defeat Davis’s claim that a lower sentence was required simply because the rationale shifted away from shoot-out participation.

United States v. Musgraves, 883 F.3d 709 (7th Cir. 2018)

Cited for the idea that a district court may reasonably determine the Guidelines do not adequately reflect the seriousness of the conduct. Here it supports the district court’s finding that Davis’s combination of (i) extensive criminal history and (ii) “profoundly dangerous” conduct and attitude warranted an above-Guidelines sentence.

B. Legal Reasoning

1) Guidelines and the “unproven related felony” problem

The PSR calculated a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A), reduced to 17 after acceptance. It considered, but declined to apply, the four-level enhancement for possessing a firearm “in connection with another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B), due to insufficient evidence Davis fired in the shoot-out.

The prior remand turned on the sentencing court’s inability to reconcile adoption of that PSR finding with remarks treating the call as confirmation of shoot-out participation. On remand, the district judge corrected course by:

• Adopting the PSR’s “insufficient evidence” finding without contradiction;
• Explicitly disclaiming any finding that Davis discharged his firearm; and
• Explaining that the call mattered for state of mind and dangerousness, not as proof of the shoot-out felony.

2) Procedural reasonableness: consistent factfinding and permissible inferences

The panel emphasizes that nothing in the resentencing remarks was inconsistent with the PSR. Even though the judge noted the call “insinuat[ed]” involvement, he immediately reiterated that evidence remained insufficient to confirm Davis fired. The Seventh Circuit accepted the judge’s clarification and treated the “insinuation” comment as an observation about tone, not a factual finding that Davis committed the shooting.

The court also deemed it permissible for the judge to interpret the call as genuine boasting rather than exaggeration. Under Gall v. United States and United States v. Dennis, this is classic sentencing fact assessment entitled to deference absent clear error.

3) Substantive reasonableness: the variance justification under broad discretion

Davis argued the district court should have reduced the sentence because the shoot-out participation theory was off the table. The panel rejected any notion of an entitlement to a downward adjustment: once the original sentence was vacated, resentencing was “on a clean slate” (Krieger v. United States; United States v. Mobley), and the court could reimpose the same sentence if supported by a fresh, coherent rationale.

The 84-month sentence was upheld as within the “broad range of objectively reasonable sentences” (United States v. Wood), grounded in:

• Davis’s extensive criminal history (category VI and more convictions than necessary to reach it);
• The judge’s assessment that Davis was resistant to rehabilitation;
• The jail call as evidence of reckless, dangerous decision-making while armed and pride in lawbreaking; and
• The conclusion that the advisory range did not reflect the seriousness of conduct (United States v. Musgraves).

C. Impact

This decision reinforces several practical rules for federal sentencing in the Seventh Circuit:

• Fixing a remand-triggering inconsistency requires an explicit pivot: a district court may not adopt a PSR’s “insufficient evidence” finding while relying on the opposite. But it may lawfully rely on the same underlying information (here, a jail call) for a different, consistent purpose (state of mind, danger, disrespect for law).
• Unproven conduct can still matter—carefully framed: even when evidence is insufficient to apply § 2K2.1(b)(6)(B), the circumstances surrounding the firearm possession (recklessness, intent, attitude) can justify a variance, so long as the judge does not smuggle in a factual finding of the unproven felony.
• “Clean slate” resentencing can yield the same outcome: defendants should not assume a vacatur guarantees a lower sentence; after a full remand, the sentencing court may impose the same term with a corrected explanation.
• Appellate deference is decisive: interpretation of ambiguous statements (like boasting) and weighting of criminal history are rarely reversible absent clear error or an explanation that is internally contradictory or legally improper.