United States v. Davis

• Citation: 751 F.3d 769
• Decision Date: 28 May 2014
• Docket Number: No. 13–3456.,13–3456.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kevin A. DAVIS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

751 F.3d 769

UNITED STATES of America, Plaintiff–Appellee,

v.Kevin A. DAVIS, Defendant–Appellant.

No. 13–3456.

United States Court of Appeals,Sixth Circuit.

Argued: March 14, 2014.

Decided and Filed: May 28, 2014.

ARGUED:Jennifer E. Schwartz, Schwartz Downey & Co., L.P.A., Cleveland, Ohio, for Appellant. Daniel R. Ranke, United States Attorney's Office, Cleveland, Ohio, for Appellee. ON BRIEF:Jennifer E. Schwartz, Schwartz Downey & Co., L.P.A., Cleveland, Ohio, for Appellant. Daniel R. Ranke, United States Attorney's Office, Cleveland, Ohio, for Appellee.

Before: GRIFFIN, WHITE, and STRANCH, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Defendant Kevin Davis pleaded guilty to one count of distributing child pornography in violation of 18 U.S.C. § 2252(a)(2) and two counts of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He now appeals his sentence, arguing that the district court erred when it concluded: (1) that defendant had a prior offense that triggered statutory mandatory minimums for the instant offenses, and (2) that defendant was properly subject to a pattern-of-activity enhancement under the Sentencing Guidelines. For the reasons set forth below, we agree with defendant that the district court erred with regard to the statutory mandatory minimums and accordingly remand for resentencing consistent with this opinion. However, the district court did not err in imposing the pattern-of-activity enhancement.

I.

In mid-March 2012, defendant uploaded images to his Microsoft SkyDrive, a cloud-storage system. Some of the images were of nude minor boys, and others included nude minor boys engaged in sexually explicit conduct. Subsequently, defendant sent an email to others inviting them to access the images he had uploaded, which prompted Microsoft to alert law enforcement as to the content of defendant's SkyDrive. A search warrant was executed at defendant's home—recovered were CDs, VHS tapes, and photographs (digital and film-based) of minors who were nude and/or engaged in sexually explicit conduct. A grand jury returned an indictment on June 7, 2012, charging defendant with one count of distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2) (Count I) and two counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Counts II and III). Defendant pleaded guilty to all three counts on December 20, 2012.

As for Count I, a person convicted of distributing child pornography is subject to a mandatory minimum of five years' imprisonment and a maximum of twenty years' imprisonment unless the person “has a prior conviction ... under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children,” in which case the minimum sentence is fifteen years' imprisonment to forty years' imprisonment. 18 U.S.C. § 2252(b)(1). As for Counts II and III, a person convicted of possessing child pornography is not subject to a mandatory minimum and is subject to a maximum of ten years' imprisonment, unless the person has a prior state-law conviction under the same criteria described in § 2252(b)(1), in which case the minimum sentence is ten years' imprisonment to twenty years' imprisonment. 18 U.S.C. § 2252A(b)(2).

The presentence report (PSR) found that defendant had “two or more separate instances of sexual abuse or sexual exploitation of a minor” and accordingly recommended a five-level enhancement for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor pursuant to U.S.S.G. § 2G2.2(b)(5). Specifically, the PSR identified two state-level prior instances of conduct as justifying the enhancement: (1) a sexual battery conviction from Lake County, Ohio, in 1989; and (2) a 1996 arrest in Tennessee for aggravated sexual battery in Williamson County, Tennessee. The PSR also concluded that defendant was subject to a mandatory minimum sentence of fifteen years on the distribution count (Count I) and to a mandatory minimum sentence of ten years on the possession counts (Counts II and III). The PSR based its mandatory minimum conclusions on defendant's 1989 Ohio sexual battery conviction, his 1996 Tennessee aggravated sexual battery arrest, and a 2002 Lake County, Ohio, conviction of attempted pandering of obscenity involving a minor. Ultimately, the PSR calculated defendant's total offense level at 35, and defendant's criminal history at level V.

The district court held its sentencing hearing on March 25, 2013. The district court ultimately concluded that the 1989 sexual battery conviction did not trigger the mandatory minimums, but that the 2002 attempted pandering conviction did. Regarding the 1989 sexual battery conviction, the district court noted that none of the documents it was permitted to examine contained the victim's age, nor was the court convinced that it was permitted to take judicial notice of the victim's birth certificate under Taylor¹ or Shepard.² Regarding the 2002 attempted pandering conviction, the district court found: (1) that an attempted crime “relat[es] to” the types of crimes listed as triggering offenses in §§ 2252, 2252A; and (2) in the 2002 conviction, the state courts “made explicit findings” that defendant engaged in conduct that would trigger the mandatory minimums. The court summarized its conclusion as follows:

[W]hen we look at those specific findings of the [state] Court, which I'm permitted to look at and consider ... the Defendant's conviction for the attempted pandering ... does trigger the enhancement.

Now, keep in mind that we only need one predicate offense for enhancements of both sections in all three counts. Doesn't have to be both the [1989] sexual battery and the [2002] attempted pandering ... conviction.

So I find for the Defendant on the first conviction [1989 sexual battery] but I find for the Government on the second one [2002 attempted pandering]. And because I find for the government on the second one, we do have the mandatory minimums for Counts 1 and 2 and 3.

The district court then turned to the five-level pattern-of-activity enhancement. The court found that in defendant's written statement from the 1989 sexual battery case, he admitted to orally penetrating a minor male child “about ten times,” which the district court characterized as a “pattern of activity that qualifies.” Defendant objected to these findings, contending that the district court was required to rely on evidence that was “tested in court” and not on a confession.

Ultimately, the court imposed a sentence of 262 months' imprisonment on Count I, and 240 months on Counts II and III, to be served concurrently.

II.

We review sentences “for reasonableness, which, we have determined, has both procedural and substantive components.” United States v. Thomas, 498 F.3d 336, 339 (6th Cir.2007) (citation and quotation marks omitted). Here, defendant challenges the procedural reasonableness of his sentence. A sentence is procedurally unreasonable if, among other things, the district court “fail[s] to calculate (or improperly calculate[s] ) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Which standard of review applies to a defendant's challenge to the procedural reasonableness of a sentence depends on whether the defendant preserved that challenge for appeal. United States v. Herrera–Zuniga, 571 F.3d 568, 578 (6th Cir.2009). We review preserved procedural-reasonableness challenges for an abuse of discretion, United States v. Freeman, 640 F.3d 180, 185–86 (6th Cir.2011); see also United States v. Bates, 552 F.3d 472, 476 (6th Cir.2009), and unpreserved procedural-reasonableness challenges for plain error. United States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008). Within this framework, our review of the district court's specific legal determinations—including whether a prior offense triggers a mandatory minimum—is de novo, and our review of the district court's specific factual findings is for clear error. United States v. Gardner, 649 F.3d 437, 442 (6th Cir.2011).

However, even if a procedural sentencing error occurs, that error is not subject to remand for resentencing if the error is harmless. See United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir.2005). Sentencing errors are harmless where this court is convinced that the “error at sentencing did not cause the defendant to receive a more severe sentence” than would have existed without the error. United States v. Gillis, 592 F.3d 696, 699 (6th Cir.2009) (citation omitted).

When determining whether a party has adequately preserved a claim for appeal, this court examines the record “with an eye to the realities of the facts and circumstances of each sentencing proceeding.” United States v. Morgan, 687 F.3d 688, 694 (6th Cir.2012) (quotation marks omitted).

Regarding the mandatory minimums, defendant argues that he is entitled to relief under two Supreme Court cases: Alleyne v. United States, –––U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) and Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Descamps addressed permissible uses of court documents in deciding whether a defendant's prior conviction triggers a mandatory minimum. Descamps, 133 S.Ct. at 2287–92. By contrast, Alleyne addressed whether facts that increased the mandatory minimum sentence were required to be found by a jury, rather than a judge, extending the Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Alleyne, 133 S.Ct. at 2155. However, defendant's sole...