United States v. Terry Davy, 713 F. App'x 439

Background

Terry Davy pled guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); PSR recommended base offense level 24 under USSG § 2K2.1(a)(2) based on two prior felonies and a +2 enhancement under § 2K2.1(b)(4)(A) for a stolen firearm; government agreed to -3 for acceptance of responsibility, yielding total offense level 23 and a Guidelines range of 92–115 months.
At sentencing the district court imposed an in-Guidelines 110-month term; Davy did not object to the PSR calculations at or before sentencing and expressly declined to object when asked after sentencing.
On appeal Davy raised three challenges: (1) the court erred by not applying the modified categorical approach to determine whether his Ohio felonious assault conviction was a "crime of violence" under USSG § 2K2.1(a)(2); (2) the district court inadequately explained its denial of a downward variance under 18 U.S.C. § 3553(a); and (3) the court relied on PSR statements that the firearm was stolen without sufficient indicia of reliability.
The government moved for the court of appeals to take judicial notice of Ohio state-court documents (Shepard documents) showing Davy was convicted under subsection A of Ohio Rev. Code § 2903.11, which tracks the violent-offense language.
The Sixth Circuit granted judicial notice, held that the Felonious Assault conviction qualified as a crime of violence, found the district court’s sentencing explanation sufficient under the deferential plain-error standard, and concluded that Davy’s failure to object converted the PSR’s statement that the gun was stolen into an admission sufficient to support the enhancement.

Issues

Issue	Plaintiff's Argument (Davy)	Defendant's Argument (Government)	Held
Whether district court should have applied the modified categorical approach to determine if the Ohio felonious assault conviction was a crime of violence	Court erred by relying on PSR rather than reviewing Shepard documents to determine which subsection of the divisible statute formed the conviction	Shepard documents show conviction under subsection A (violent subsection); judicial notice is appropriate	Court: district court erred procedurally but no plain error because judicially noticed Shepard documents establish conviction under subsection A, so enhancement stands
Whether district court gave an adequate explanation for denying a downward variance under § 3553(a)	Explanation was insufficient and failed to address relevant § 3553(a) factors	Court addressed defendant’s history and § 3553(a) factors and provided reasoned basis for denial; explanation need not address every argument when sentence is within Guidelines	Court: explanation—though not exhaustive—was sufficient and not plain error; sentence not procedurally unreasonable
Whether PSR statements that the firearm was stolen lacked sufficient indicia of reliability for a § 2K2.1(b)(4)(A) enhancement	PSR allegations alone are insufficient under Due Process and USSG § 6A1.3(a) absent independent reliable proof	Davy failed to object; his silence/admissions in PSR and sentencing materials make the fact undisputed and satisfy minimal indicia of reliability	Court: because Davy admitted PSR facts by not objecting (and included the enhancement in his sentencing memo), the stolen-firearm finding was reliable and the enhancement stands
Whether the court of appeals may take judicial notice of state court documents to resolve sentencing-dispute	Argues facts in state documents are in reasonable dispute and thus not appropriate for judicial notice	State charging document and journal entries are proper Shepard documents and are the sort of judicial records appropriate for judicial notice under Fed. R. Evid. 201	Court: granted motion to take judicial notice; state court records clearly show conviction under subsection A

Key Cases Cited

Vonner v. United States, 516 F.3d 382 (6th Cir. 2008) (plain-error standard for unobjected-to sentencing issues)
Shepard v. United States, 544 U.S. 13 (2005) (limiting documents courts may consult when applying categorical/modified categorical approach)
Descamps v. United States, 133 S. Ct. 2276 (2013) (modified categorical approach for divisible statutes)
United States v. Ferguson, 681 F.3d 826 (6th Cir. 2012) (judicial notice of state-court records and limits of relying on PSR)
United States v. Anderson, 695 F.3d 390 (6th Cir. 2012) (distinguishing subsections of Ohio felonious assault for violent-felony analysis)
Gall v. United States, 552 U.S. 38 (2007) (procedural requirement that district court adequately explain sentence)
Rita v. United States, 551 U.S. 338 (2007) (appellate review assesses whether district court gave a reasoned basis for its sentence)
United States v. Wynn, 579 F.3d 567 (6th Cir. 2009) (PSR cannot substitute for Shepard documents when determining nature of prior conviction)