United States of America v. Thomas Jeffrey Davis

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
THOMAS JEFFREY DAVIS,
Defendant - Appellee.
No. 15-50118
D.C. No. 2:12-cr-01206-R-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted April 4, 2016
Pasadena, California
Before: FARRIS, BEA, and M. SMITH, Circuit Judges.
The United States appeals defendant Thomas Jeffery Davis’s 24-month
sentence imposed following his guilty-plea conviction for engaging in business as
a manufacturer and dealer in firearms without registration, in violation of 26
U.S.C. § 5861(a), and for possessing an unregistered firearm, in violation of 26
FILED
APR 18 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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U.S.C. § 5861(d). We have jurisdiction under 28 U.S.C. § 1291, and we vacate
and remand for resentencing.
The government argues that the district court’s substantial downward
departure from the applicable Guidelines range was procedural error because the
sentence was chosen on the basis of clearly erroneous facts. The district court
explained its decision by stating that it felt that Davis was not in the business of
guns and that the confidential informant used by the government was the sole
source of the guns and the allegations against Davis. These assertions are not
supported by the record, which shows that Davis was the source of all firearms
involved and that he sold those firearms for profit. A sentence based on clearly
erroneous facts cannot be sustained. United States v. Carty, 520 F.3d 984, 993 (9th
Cir. 2008) (en banc).
VACATED and REMANDED.
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