United States v. Davison

129 F. App'x 536
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 20, 2005
DocketNo. 04-13428; D.C. Docket No. 03-00122-CR-FTM-29-DNF
StatusPublished

This text of 129 F. App'x 536 (United States v. Davison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Davison, 129 F. App'x 536 (11th Cir. 2005).

Opinion

PER CURIAM.

Francis Mackey Davison, III, appeals his 120-month sentence, imposed after he pled guilty to possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). On appeal, Davison argues that the district court erred by imposing an enhanced sentence, based on his prior state conviction for lewd conduct with a minor, because that fact was not charged in the indictment or expressly admitted by him during the plea colloquy, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which was extended to the federal Sentencing Guidelines in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Davison timely raised his sentencing claim in the district court and his initial brief in this Court, and thus he is entitled to preserved error review. See United States v. Candelario, 240 F.3d 1300, 1305 (11th Cir.2001) (reviewing preserved Apprendi claim). Under this standard, we look first to whether there was error and, if so, we undertake a harmless error analysis. Id. at 1307; United States v. Nealy, 232 F.3d 825, 829 (11th Cir.2000) (reviewing preserved constitutional challenge to a sentence de novo, but stating we “will reverse or remand only for harmful error”).

Upon thorough review of the record and careful consideration of the parties’ briefs, we find no reversible error and affirm.

The relevant facts are straightforward. On November 12, 2003, by superseding indictment, Davison was charged with one count of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2) (Count 1), and one count of receiving child pornography that was shipped or transported in interstate and foreign commerce, in violation of 18 U.S.C. § 2252(a)(2), (b)(1) (Count 2). Davison subsequently pled guilty to Count 1 and, upon the government’s motion, the district court dismissed Count 2.

The government provided the following factual basis for Davison’s plea in its Notice of Penalties, Elements, and Facts (“Notice”). On August 29, 2003, Federal Bureau of Investigation (“FBI”) Special Agent John Kuchta spoke with Officer Maureen Trelease, of the Florida Depart[538]*538ment of Corrections. Officer Trelease had been Davison’s probation officer since Davison was released from state prison on July 17, 2001, after being convicted of committing lewd or lascivious conduct with a victim under 16 years old. Also on August 29, 2003, another FBI agent went to Davison’s place of business, confirming that Davison was employed there.

Thereafter, in September 2003, a federal search warrant was executed at Davison’s place of business for Davison’s computer and all stored electronic information located at Davison’s desk. A subsequent forensic examination of the computer revealed 23 or more movie/image files, which were chronicled in the Notice, all depicting prepubescent children engaged in sex acts. When confronted, Davison provided a full confession. The Notice indicated that the maximum term of imprisonment was 15 years.

During the plea colloquy, the district court clarified that the maximum penalty was different from what was presented in the Notice, which Davison acknowledged receiving. The district court stated that the maximum penalty was 10 years’ imprisonment, but, that if Davison had certain types of prior convictions, there could be an enhancement, which would increase the imprisonment range to 10 to 20 years. At that point, the district court advised Davison that it did not know whether Davison’s prior conviction qualified him for the enhancement, stating that the determination would be made at sentencing, based on the presentence investigation report (“PSI”). The district judge again reiterated that it was possible that Davison’s prior conviction would result in the imposition of a sentence that carried a mandatory minimum sentence of 10 years’ imprisonment. Davison replied that he understood. The district court then explained that the Sentencing Guidelines are “[ejssentially a set of rulings that the [cjourt has to following in deciding what sentence should be imposed.” The court further explained that the PSI had to be prepared in order to determine (1) how the Guidelines would apply to Davison’s sentence, and (2) the applicable maximum penalty, which would be based, in part, on Davison’s prior record. Davison acknowledged that he understood.

The government then proffered the facts supporting the charge and Davison acknowledged that the factual proffer was accurate. The district court asked Davison if he had “read the facts set forth in that [Njotice? It’s several pages,” to which Davison replied, “I haven’t read them at length.... I kind of glossed over them.” The court then directed Davison to review the entire factual basis contained in the Notice and indicate whether there were any portions that were not accurate. After reviewing the Notice, Davison objected to, inter alia, the specific chronicle of files stored on his computer, indicating that he could not recall the exact files, but stating that he “freely admitted] his guilt and that he had materials on his computer that he [knew were] in violation of the law.” Davison then admitted to downloading the chronicled movies/images. Finding that Davison’s plea was knowing and voluntary, the court accepted his plea of guilty. Davison then proceeded to sentencing.

The PSI calculated a total adjusted base offense level of 24 and a criminal history category III, which produced an initial sentencing range of 63 to 78 months’ imprisonment. Because the statutorily required minimum sentence was greater than the applicable Guideline range, however, the probation officer found that the Guideline imprisonment range was the statutory minimum, or 120 months, under U.S.S.G. § 5Gl.l(c)(2) and 18 U.S.C. § 2252(b)(2). In calculating the statutory minimum sentence, the PSI noted that, in [539]*5392000, when Davison was 26 years old, he was convicted by a Florida court of lewd or lascivious conduct with a 5-year-old girl.

At the sentencing hearing, Davison objected to imposition of the mandatory minimum sentence, arguing that because his prior conviction was not charged in the superseding indictment, it could not be used as a basis for the enhanced sentence. Davison argued that the Supreme Court’s decision in Apprendi undercut its earlier decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that the fact of a prior conviction need not be alleged in the indictment or submitted to the jury in order to be used to enhance a sentence). Davison asked that the district court to overrule Almendarez-Torres.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Emanuel Marseille
377 F.3d 1249 (Eleventh Circuit, 2004)
United States v. Terrance Shelton
400 F.3d 1325 (Eleventh Circuit, 2005)
United States v. Miguel Orduno-Mireles
405 F.3d 960 (Eleventh Circuit, 2005)
Almendarez-Torres v. United States
523 U.S. 224 (Supreme Court, 1998)
Apprendi v. New Jersey
530 U.S. 466 (Supreme Court, 2000)
Blakely v. Washington
542 U.S. 296 (Supreme Court, 2004)
United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
United States v. Jose Manuel Candelario
240 F.3d 1300 (Eleventh Circuit, 2001)
United States v. Camacho-Ibarquen
404 F.3d 1283 (Eleventh Circuit, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
129 F. App'x 536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-davison-ca11-2005.