United States v. Davis, No. 13-3456 (6th Cir. 2014)
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Davis pleaded guilty to distributing child pornography, 18 U.S.C. 2252(a)(2) and two counts of possessing child pornography, 18 U.S.C. 2252A(a)(5)(B). The presentence report (PSR) found that defendant had “two or more separate instances of sexual abuse or sexual exploitation of a minor” and recommended a five-level enhancement for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor (U.S.S.G. 2G2.2(b)(5)). The PSR also concluded that Davis was subject to a mandatory minimum sentence of 15 years on the distribution count and to a mandatory minimum sentence of 10 years on the possession counts. The district court concluded that a 1989 sexual battery conviction did not trigger the mandatory minimums, but that the 2002 attempted pandering conviction did. Regarding a 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. The court imposed a sentence of 262 months. The Sixth Circuit remanded, agreeing that the district court erred with regard to the statutory mandatory minimums. The court did not err in imposing the pattern-of-activity enhancement.
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