453 F. App'x 452
5th Cir.2011Background
- Barry Davis was convicted by jury on three counts: sex trafficking of a minor (18 U.S.C. § 1591(a)); transportation of minors with intent to engage in criminal sexual activity (18 U.S.C. § 2423(a)); and coercion/enticement to travel for prostitution (18 U.S.C. § 2422).
- District court sentenced Davis to concurrent 405-month terms for counts 1 and 2, and 240 months for count 3, with life supervised release.
- The investigation linked Davis to CM, a 16-year-old pregnant girl, and to other potential victims through online ads, hotel stays, and the pimp relationship.
- Key trial evidence included CM’s testimony, Nichole Clock’s testimony, Davis’s computer and vehicle evidence, and testimony from FBI agents and a hotel clerk.
- Davis argued on appeal that racially charged testimony by government witnesses violated his equal protection and due process rights, and that the evidence was insufficient to convict.
- Davis also challenged the sentence, contending errors in the use of prior uncharged conduct for a five-level enhancement and in applying a multiple-count adjustment under the guidelines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the racially charged testimony plain error? | Davis argues the evidence impermissibly invoked race to show guilt. | Davis contends the testimony was prejudicial and not harmless beyond a reasonable doubt. | No reversible plain error; not shown to affect substantial rights or outcome. |
| Was the evidence sufficient to support all three convictions? | C.M. and N. Clock were not credible witnesses and thus cannot support convictions. | Credibility disputes properly resolved by jury; other corroborating evidence exists. | Convictions supported by substantial evidence and credible witness testimony. |
| Did the district court err in applying a five-level pattern enhancement under § 4B1.5(b)(1) based on alleged prior minor-sex conduct? | PSR evidence about prior minor conduct was credible and properly relied upon. | Prior conduct was not proven or credible for enhancement purposes. | District court properly relied on PSR; enhancement affirmed. |
| Was the § 3D1.4 multiple-count adjustment for RD (and related conduct) improperly applied when not part of the offense of conviction? | Conduct with RD should enhance the offense level as relevant conduct. | RD conduct occurred outside the offense of conviction and cannot support the adjustment. | Error to use RD conduct for § 3D1.4; remand for resentencing with adjusted offense level. |
Key Cases Cited
- United States v. Anderson, 560 F.3d 275 (5th Cir. 2009) (racially tinged testimony not harmless when repeated; caution against race-based inferences)
- United States v. Vue, 13 F.3d 1206 (8th Cir. 1994) (extensive racialized references render evidence not harmless error)
- United States v. Doe, 903 F.2d 16 (D.C. Cir. 1990) (racialized drug-dealer testimony not harmless when inflammatory)
- United States v. Rodriguez Cortes, 949 F.2d 532 (1st Cir. 1991) (identification card linking to ethnicity used as basis for inference)
- United States v. McNealy, 625 F.3d 858 (5th Cir. 2010) (standard for sufficiency review; deference to jury credibility judgments)