United States v. Kevin Davis
2014 U.S. App. LEXIS 9769
| 6th Cir. | 2014Background
- Defendant Kevin Davis pleaded guilty to one distribution and two possession counts of child pornography, triggering questions about mandatory minimums and a pattern enhancement.
- The district court relied on state-court convictions (1989 sexual battery, 1996 aggravated sexual battery arrest, 2002 pandering) to determine triggering offenses and the five-level pattern of activity; PSR computed him at criminal history V and offense level 35.
- SkyDrive upload of nude minor images in 2012 led to search, seizure of physical/digital material, and federal indictment filed June 7, 2012; guilty pleas entered December 20, 2012.
- District court concluded 1989 conviction did not trigger minimums, but 2002 attempted pandering did, and imposed 262 months on Count I and 240 months on Counts II–III, to be served concurrently.
- Court also applied a five-level pattern-of-activity enhancement based on a written 1989 confession; defendant objected to reliance on a non-testified statement.
- Appeals court reverses on the mandatory-minimum issue, remanding for resentencing; opinions uphold the pattern enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2002 attempted pandering conviction triggers the mandatory minimums. | Davis contends it does not, under the Taylor/Shepard framework; the facts of the underlying case cannot justify triggering. | The government argues the 2002 conviction, as a predicate, satisfies the statutory trigger under the modified categorical approach. | The district court erred; the triggering analysis was improper under the modified categorical approach; remand required. |
| Whether the 1989 sexual battery conviction can serve as a triggering offense. | Davis argues it should not necessarily trigger minimums absent appropriate age-victim proof. | The government contends the conviction could serve as a predicate under the statute. | The court held the 1989 conviction cannot by itself justify triggering minimums; error but not the sole focus of remand. |
| Whether the five-level pattern-of-activity enhancement is proper. | Objected to reliance on a confession as the sole basis for the enhancement; argued lack of testing in court. | The district court properly relied on a reliable, voluntary written confession detailing multiple acts. | The district court did not abuse its discretion; pattern enhancement affirmed. |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (mandatory minimums must be found by a jury)
- Descamps v. United States, 133 S. Ct. 2276 (U.S. 2013) (modified categorical approach limits use of non-elemental facts)
- Taylor v. United States, 495 U.S. 575 (U.S. 1990) (categorical approach for prior convictions; elements-based)
- Shepard v. United States, 544 U.S. 13 (U.S. 2005) (documents may be used to identify which elements were at issue)
- United States v. Covington, 738 F.3d 759 (6th Cir. 2014) (modified categorical approach application to divisible statutes)
- United States v. Adkins, 729 F.3d 559 (6th Cir. 2013) (judgment entry as Shepard document)