United States v. Kevin Davis

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0111p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

│ No. 13-3456

v. │

>

│

KEVIN A. DAVIS, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:12-cr-00287-1—Christopher A. Boyko, District Judge.

Argued: March 14, 2014

Decided and Filed: May 28, 2014

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

_________________

COUNSEL

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.

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OPINION

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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 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

1

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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).

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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.

1

Taylor v. United States, 495 U.S. 575, 602 (2005).

2

United States v. Shepard, 544 U.S. 13, 26 (2005).

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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 (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

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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. 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, 133 S. Ct. 2151 (2013) and Descamps v.

United States, 133 S. Ct. 2276 (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 (2000). Alleyne, 133 S. Ct. at 2155.

However, defendant’s sole argument below with regard to the mandatory minimums was that

neither his 1989 sexual battery conviction nor his 2002 attempted pandering conviction were

sufficient to trigger the mandatory minimums under Shepard and Taylor. Defendant failed to

adequately develop any argument under Apprendi. Accordingly, defendant’s arguments under

Descamps fall within the ambit of an issue properly preserved for appellate review. His

arguments under Alleyne, however, do not fall within a claim he raised below; accordingly, this

issue is unpreserved for appellate review and plain error review applies to it.

As to defendant’s argument regarding the pattern-of-activity enhancement, we conclude

that defendant properly preserved this issue for appellate review. Defendant objected to the

PSR’s recommendation that the enhancement be imposed and raised the issue separately at

sentencing.

No. 13-3456 United States v. Davis Page 6

III.

Defendant first argues that, under Alleyne, the district court erred by finding that

defendant’s 2002 attempted pandering conviction triggered the mandatory minimum sentence

where Alleyne instructs that such a finding be made by a jury, not the judge. We disagree.

In Apprendi, the Supreme Court held that “facts that increase the prescribed range of

penalties to which a criminal defendant is exposed” are elements of the crime, and therefore the

defendant has the right to have those facts found by a jury beyond a reasonable doubt. 530 U.S.

at 490 (quotation marks omitted). In Alleyne, the Court held that “[m]andatory minimum

sentences increase the penalty for a crime. It follows, then, that [under Apprendi] any fact that

increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Alleyne,

133 S. Ct. at 2155. However—and critically—the Alleyne Court specifically noted that:

In Almendarez–Torres v. United States, 523 U.S. 224 (1998), we recognized a

narrow exception to [Apprendi’s] general rule for the fact of a prior conviction

[namely, that the fact of a prior conviction can be found by a judge by a

preponderance of the evidence]. Because the parties do not contest that decision’s

vitality, we do not revisit it for purposes of our decision today.

Id. at 2160 n.1. In other words, the fact of a prior conviction, such as defendant’s 2002

attempted pandering conviction, can still be found by a judge by a preponderance of the

evidence, as occurred here. Indeed, this court has already rejected an argument identical to

defendant’s in another case. See United States v. Keglar, 535 F. App’x 494, 495 (6th Cir. 2013).

Accordingly, the district court did not commit plain serror by failing to submit to a jury the fact

of defendant’s 2002 attempted pandering conviction. To the extent that Davis argues that the

district court went beyond the fact of his prior conviction and engaged in judicial factfinding, we

address this under our Descamps analysis below.

Next, defendant argues that his 2002 attempted pandering conviction cannot serve as a

triggering offense for the mandatory minimums “because the pandering statute is indivisible.”

Although we disagree with defendant that the statute is indivisible, we nonetheless agree with

him that the district court erred in concluding that defendant’s prior convictions trigger the

mandatory minimums in 18 U.S.C. §§ 2252(b)(1), 2252A(b)(2).

No. 13-3456 United States v. Davis Page 7

Summarizing the Supreme Court’s decisions in Taylor and Shepard, this court has

explained that:

[I]n determining the nature of a defendant’s prior conviction, we apply a

“categorical” approach, meaning that we look at the statutory definition of the

crime of conviction, not the facts underlying that conviction, to determine the

nature of the crime. [In a narrow class of cases,] we may look at the indictment,

guilty plea and similar documents to see if they “necessarily” establish the nature

of the prior offense. Reference to such documents is often referred to as the

“modified categorical approach.”

United States v. Johnson, 675 F.3d 1013, 1016–17 (6th Cir. 2012) (internal citations and

quotation marks omitted). See also Taylor, 495 U.S. at 600–02 (establishing the categorical and

modified categorical approaches); Shepard, 544 U.S. at 26 (limiting the types of material a court

can consider under the modified categorical approach); Descamps, 133 S. Ct. at 2283–84

(summarizing Taylor and Shepard). This court has applied the Taylor/Shepard approach to the

statutory minimums at issue here. See United States v. McGrattan, 504 F.3d 608, 612 (6th Cir.

2007).

The purpose of the modified categorical approach is to establish “whether the court

documents establish that the defendant ‘necessarily admitted’ the elements [or was convicted] of

a predicate offense.” United States v. Medina-Almaguer, 559 F.3d 420, 423 (6th Cir. 2009)

(quoting Shepard, 544 U.S. at 16). In Descamps, the Supreme Court held that the modified

categorical approach applies only to divisible statutes—that is, statutes that

set[] out one or more elements of the offense in the alternative—for example,

stating that burglary involves entry into a building or an automobile. If one

alternative (say, a building) matches an element in the generic offense, but the

other (say, an automobile) does not, the modified categorical approach permits

sentencing courts to consult a limited class of documents, such as indictments and

jury instructions, to determine which alternative formed the basis of the

defendant’s prior conviction. The court can then do what the categorical

approach demands: compare the elements of the crime of conviction (including

the alternative element used in the case) with the elements of the generic crime.

Descamps, 133 S. Ct. at 2281.

The Descamps Court emphasized, however, that the modified categorical approach “does

not authorize a sentencing court to substitute . . . a facts-based inquiry for an elements-based one.

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A court may use the modified approach only to determine which alternative element in a

divisible statute formed the basis of the defendant’s conviction” and may not rely on the

underlying facts of the offense beyond the extent to which they help the court identify which

elements of the statute were at issue in the prior conviction. Id. at 2293. Indeed, as this court has

held, when applying the modified categorical approach, a court must first “ask whether the

statute at issue is divisible. . . . If so, as part of the modified categorical ‘step,’ the court may

look to the Shepard documents—but only to see which alternative version of the offense is at

issue.” United States v. Covington, 738 F.3d 759, 763 (6th Cir. 2014).

The Supreme Court in Descamps explained that it was not announcing a new rule, but

was simply reaffirming the Taylor/Shepard approach, which some courts had misconstrued. Id.

at 2283 (“Our caselaw explaining the categorical approach and its ‘modified’ counterpart all but

resolves this case.”); see also Shepard, 544 U.S. at 25 (explaining that it is not the role of district

courts, when engaged in the modified categorical approach, to “make a disputed finding of fact

about what the defendant and the state judge must have understood as the factual basis” of the

prior conviction). In reversing the Ninth Circuit, Descamps criticized that court for

impermissibly “turn[ing] an elements-based inquiry into an evidence-based one.” Id. at 2287.

Here, defendant was convicted in 2002 in Ohio state court of attempting to pander

obscenity involving a minor. The Ohio statute criminalizing pandering obscenity, Ohio Rev.

Code § 2907.321, is clearly divisible, as it contains alternative elements. For example, it makes

it a crime both to “create, direct, or produce” an obscene performance involving a minor, Ohio

Rev. Code § 2907.321(A)(3), and to “[b]ring or cause to be brought into this state any obscene

material that has a minor as one of its participants.” Ohio Rev. Code § 2907.321(A)(6).

Accordingly, because the statute was divisible, the district court was permitted to examine

Shepard-approved documents to determine under which elements of the statute defendant was

convicted. Descamps, 133 S. Ct. at 2281. The relevant Shepard-approved document in this case

specifies under which section of the statute defendant was convicted: according to defendant’s

Ohio Judgment Entry of Sentence, he was convicted pursuant to § 2907.321(A)(1). See United

States v. Adkins, 729 F.3d 559, 569 (6th Cir. 2013) (holding that a judgment entry is a proper

No. 13-3456 United States v. Davis Page 9

Shepard document). Section 2907.321(A)(1) makes it a crime to “[c]reate, reproduce, or publish

any obscene material that has a minor as one of its participants or portrayed observers.”

Defendant’s conviction under § 2907.321(A)(1) triggers the statutory mandatory

minimums of §§ 2252(b)(1) and 2252A(b)(2) only if the elements of § 2907.321(A)(1) “relate[]

to . . .” the possession or distribution of “child pornography” as federally defined. Under Ohio

law, material is “obscene” for purposes of § 2907.321(A)(1) if it involves a minor and:

[i]t contains a series of displays or descriptions of [inter alia], nudity . . . . the

cumulative effect of which is a dominant tendency to appeal to prurient or

scatological interest, when the appeal to such an interest is primarily for its own

sake or for commercial exploitation, rather than primarily for a genuine scientific,

educational, sociological, moral, or artistic purpose.

Ohio Rev. Code § 2907.01(F)(5) (emphasis added). Nudity alone, without more, cannot be

“child pornography” under federal law. See 18 U.S.C. § 2256(2)(A). But it can be under the

provision of Ohio law under which defendant was convicted in 2002. Accordingly, a conviction

pursuant to § 2907.321(A)(1) is not categorically a predicate offense. See Covington, 738 F.3d

at 763. The district court committed an error of law—and therefore abused its discretion—by

concluding otherwise. United States v. Clay, 667 F.3d 689, 694 (6th Cir. 2012) (“[I]t is an abuse

of discretion to make errors of law . . . .”) (citation and quotation marks omitted).

The government argues (and the district court found) that because the Ohio Judgment

Entry of Sentence as to the 2002 attempted pandering conviction does, in fact, list the victims’

ages as 9 and 11 and found that the images at issue in that case were of children engaged in sex

acts, the 2002 attempted pandering conviction triggers the mandatory minimums. However, as

the Supreme Court held, such an analysis impermissibly “turns an elements-based approach into

an evidence-based one. It asks not whether ‘statutory definitions’ necessarily require an

adjudicator to find the generic offense, but instead whether the prosecutor’s case realistically led

the adjudicator to make that determination.” Descamps, 133 S. Ct. at 2287. Accordingly, the

district court erred when it ruled that “I’m permitted to look at and consider . . . [the state court’s]

explicit findings” regarding the content of the images seized pursuant to the 2002 attempted

pandering case. Indeed, under Shepard, Taylor, and Descamps, what actually occurred in the

prior offense is irrelevant to the court’s inquiry. In properly applying the modified categorical

No. 13-3456 United States v. Davis Page 10

approach, a court examines Shepard-approved documents only to “determine which [elements of

the statute] formed the basis of the defendant’s prior conviction,” not to determine the facts of

the underlying case. Descamps, 133 S. Ct. at 2281; see also Shepard, 544 U.S. at 25. Put

another way, the purpose of the modified categorical approach is simply to determine of what

elements the defendant was convicted so that the court can apply the categorical approach.

Descamps, 133 S. Ct. at 2281; see also id. at 2285 (“[T]he modified approach merely helps

implement the categorical approach . . . It retains the categorical approach’s central feature: a

focus on the elements, rather than the facts, of a crime.”). And, under the categorical approach,

sentencing courts may “look only to the statutory definitions” of a defendant’s prior offense and

not “to the particular facts underlying those convictions.” Taylor, 495 U.S. at 600.

Having concluded that the district court erred, we must next determine whether its error

was harmless. We conclude it was not. Regarding Count I, the statutory maximum without a

prior triggering offense is 20 years, or 240 months. 18 U.S.C. § 2252(b)(1). The district court

sentenced defendant to 262 months on Count I, which would be within the statutory range if

there were a triggering offense. But because the district court erred by ruling that there was a

triggering prior offense, the 262-month sentence exceeds the applicable statutory maximum. Id.

Similarly, the statutory maximum for Counts II and III without a prior triggering offense would

be 10 years, or 120 months. 18 U.S.C. § 2252A(b)(2). Here, the district court sentenced

defendant to double that—240 months. The 240-month sentence on Counts II and III would be

the statutory maximum with a triggering prior offense, but because the district court erred by

concluding that there was a prior triggering offense here, the 240-month sentence exceeds the

applicable statutory maximum. Accordingly, the district court’s error was not harmless, and we

must remand for resentencing.

The government argues that we should affirm on the alternative basis that the 1989 sexual

battery conviction need not involve a minor to qualify as a predicate offense under

§ 2252A(b)(2). While we have addressed this issue in another case that is currently pending for

en banc review, see United States v. Mateen, 739 F.3d 300, 304 (6th Cir. 2014) (vacated Apr. 8,

2014), we will not consider this argument here because the government waived it below by

failing to make it in the district court. Although the government argues that it “specifically

No. 13-3456 United States v. Davis Page 11

reserved this argument in its sentencing memorandum,” the record belies this assertion. The

government’s position in its sentencing memorandum was not that the victim’s age was

immaterial to whether the 1989 sexual battery conviction was a triggering offense; instead, its

position was that the victim’s age could be established through a variety of means, including by

the introduction of a birth certificate. At the sentencing hearing, the government similarly did

not argue that the victim’s age was immaterial either before or after the district court ruled on the

status of the 1989 sexual battery conviction. Indeed, in its brief, the government concedes that it

“focused on abusive sexual conduct involving a minor at the sentencing hearing.” As a general

rule, “this court will not consider arguments raised for the first time on appeal,” and we decline

to do so here. Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir.

2002); see also United States v. Graham, 327 F.3d 460, 466 (6th Cir. 2003).

IV.

Finally, defendant argues that the district court erred by adding a five-level enhancement

under U.S.S.G. § 2G2.2(b)(5). We disagree.

The enhancement under § 2G2.2(b)(5) applies when a defendant “engage[s] in a pattern

of activity involving the sexual abuse or exploitation of a minor.” The Guidelines define a

“pattern of activity involving the sexual abuse or exploitation of a minor” as

any combination of two or more separate instances of the sexual abuse or sexual

exploitation of a minor by the defendant, whether or not the abuse or exploitation

(A) occurred during the course of the offense; (B) involved the same minor; or

(C) resulted in a conviction for such conduct.

U.S.S.G. § 2G2.2, cmt. n.1. Unlike with the mandatory minimums, the district court is permitted

to find facts supporting the pattern-of-activity enhancement by a preponderance of the evidence.

United States v. Denson, 728 F.3d 603, 614 (6th Cir. 2013). Accordingly, the district court is not

limited to Shepard-approved documents in making this determination, so long as the information

it relies on is “reliable.” Id. In other words, the sentencing court must find that the information

“has sufficient indicia of reliability to support its probable accuracy.” United States v. Hunt,

487 F.3d 347, 352 (6th Cir. 2007) (quoting U.S.S.G. § 6A1.3(a)).

No. 13-3456 United States v. Davis Page 12

Here, the district court found that defendant’s written statement from his 1989 sexual

battery conviction—in which defendant admitted performing oral sex on a boy he babysat on

about ten occasions—was sufficient on its own to support the pattern-of-activity enhancement.

We agree. The confession was written by defendant, signed by defendant, was voluntary, and

contained sufficient detail of the crimes to which defendant ultimately pleaded guilty.

Accordingly, the district court did not abuse its discretion by applying the pattern-of-activity

enhancement.

V.

For these reasons, we reverse defendant’s sentence and remand for resentencing

consistent with this opinion.