No. 24-1294 ___________________________

United States of America

Plaintiff - Appellee

v.

Dontavius Rashaun Sharkey, also known as Dontavius Rashawn Sharkey, also known as Dontavius Rashown Sharkey

Defendant - Appellant ____________

Appeal from United States District Court for the Southern District of Iowa - Central ____________

Submitted: January 16, 2025 Filed: March 12, 2025 ____________ Before GRUENDER, BENTON, and ERICKSON, Circuit Judges. ____________ BENTON, Circuit Judge.

A jury convicted Dontavius R. Sharkey of, as relevant here, two counts of felon in possession of a firearm and two counts of a straw-purchasing conspiracy in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(8), 932(b)(1), and 932(c)(1). The district court1 sentenced Sharkey to 360 months. He appeals his conviction and sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

Sharkey argues that 18 U.S.C. § 922(g)(1) is unconstitutional on its face and as-applied to him. He contends that the felon-in-possession charges were unconstitutional as-applied because his prior felony was nonviolent. He adds that the straw-purchasing-conspiracy charges were unconstitutional as-applied because they rested on the prohibition from possessing a firearm as a felon. This court’s precedent forecloses these arguments. See United States v. Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024) (holding post-Rahimi that “there is no need for felony- by-felony litigation regarding the constitutionality of § 922(g)(1)”).

Sharkey challenges the use of acquitted conduct to increase his Guidelines range and enhance his sentence. The district court found Sharkey’s acquitted conduct proven by a preponderance of the evidence: “I find by a preponderance of the evidence that the Government established that Defendant was the person who fired 24 rounds from a machinegun and another weapon into a crowd of people.”

This challenge is contrary to longstanding precedent. See United States v. Watts, 519 U.S. 148, 157 (1997) (holding “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence”); United States v. Bullock, 35 F.4th 666, 671 (8th Cir. 2022), cert. denied, 143 S. Ct. 2691 (2023) (holding “reliance on acquitted conduct to depart upward did not violate [defendant’s] Fifth and Sixth Amendment rights”).

Nor was the court required to apply proposed amendments to the Sentencing Guidelines that would prohibit consideration of acquitted conduct. See United States v. Lawin, 779 F.3d 780, 781 (8th Cir. 2015) (“Our case law on this issue is

1 The Honorable Stephanie M. Rose, Chief Judge, United States District Court for the Southern District of Iowa. -2- clear: The district court was not required to consider the pending guidelines amendment. Consideration of the pending amendment is merely permissible, not required.” (cleaned up)).

Moreover, the district court stated that: “even without [the acquitted conduct], this sentence would be appropriate.” “Any error resulting from an incorrect calculation of the Guidelines is harmless when the district court indicates it would have alternatively imposed the same sentence even if a lower guideline range applied.” United States v. Holmes, 87 F.4th 910, 914 (8th Cir. 2023) (cleaned up).

Sharkey contests the procedural and substantive reasonableness of his sentenc