                                                                              FILED
                       UNITED STATES COURT OF APPEALS
                                                                               JAN 15 2019
                              FOR THE NINTH CIRCUIT                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                          No.    17-10140

                Plaintiff-Appellee,                D.C. No.
                                                   2:13-cr-00399-MCE-1
 v.                                                Eastern District of California,
                                                   Sacramento
JESSE DAVENPORT, AKA Draco John
Flama,
                                                   ORDER
                Defendant-Appellant.


Before: D.W. NELSON, W. FLETCHER, and BYBEE, Circuit Judges.

         The court’s memorandum disposition filed October 26, 2018, is hereby

amended. An amended memorandum is filed herewith.

         The panel has voted to grant panel rehearing for the purposes of amending

the memorandum disposition only, and has voted to deny further panel rehearing.

Judge W. Fletcher and Judge Bybee voted to deny the petition for rehearing en

banc, and Judge D.W. Nelson recommended denying the petition for rehearing en

banc.

         The full court has been advised of the petition for rehearing en banc, and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.
      The petition for rehearing and the petition for rehearing en banc, filed

December 10, 2018, is DENIED. No subsequent petitions for rehearing or

rehearing en banc may be filed.
                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 15 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-10140

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00399-MCE-1
 v.

JESSE DAVENPORT, AKA Draco John                  AMENDED MEMORANDUM*
Flama,

              Defendant-Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                      Argued and Submitted October 9, 2018
                            San Francisco, California

Before: D.W. NELSON, W. FLETCHER, and BYBEE, Circuit Judges.

      Jesse Davenport appeals his conviction and 50-year prison sentence on child

pornography charges. He raises five challenges to his conviction and four to his

sentence. Although Davenport’s challenges to his conviction are without merit, the


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
district court committed two prejudicial errors during sentencing. We affirm

Davenport’s conviction and remand the matter for re-sentencing.

                   I.   CHALLENGES TO THE CONVICTION

      1. First, Davenport challenges the district court’s decision to allow him to

waive his right to counsel and represent himself before and during trial. A

defendant has the right to proceed without counsel, Faretta v. California, 422 U.S.

806, 819–21 (1975), but the district court must first determine that he “understands

1) the nature of the charges against him, 2) the possible penalties, and 3) the

dangers and disadvantages of self-representation.” United States v. Erskine, 355

F.3d 1161, 1167 (9th Cir. 2004) (internal citation and punctuation omitted). We

review this mixed question of fact and law de novo. United States v. Neal, 776

F.3d 645, 657 (9th Cir. 2015).

      Here, the district court ensured that Davenport’s waiver of counsel was

knowing, intelligent, and voluntary. On three occasions—when Davenport first

requested to represent himself, when he was arraigned on a superseding

indictment, and when Davenport requested that his stand-by counsel be discharged,

the district court advised Davenport of the serious nature of the charges against

him, the wisdom of retaining counsel, and the likelihood of conviction if he chose

to represent himself. The government advised Davenport of the charges on both


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the original and superseding indictments and the statutory minimum and maximum

penalties he would face if convicted. Thus, the district court did not err in

concluding that Davenport understood the nature of the charges against him, the

possible penalties, and the dangers and disadvantages of self-representation. See

Erskine, 355 F.3d at 1167.

      2. Second, Davenport argues that the district court erred in denying his

motion to suppress evidence from a search of his cell phone. He claims his parole

officer was without statutory or constitutional authority to search the phone while

Davenport was detained in a county jail on suspicion of a parole violation. We

review the district court’s decision de novo. United States v. Zapien, 861 F.3d 972,

974 (9th Cir. 2017).

      A California parolee is, by statute, “subject to search or seizure by a

probation or parole officer or other peace officer at any time of the day or night,

with or without a search warrant or with or without cause.” See Cal. Penal Code

§ 3067(b)(3). Davenport signed terms of parole consenting to these warrantless

statutory searches. The U.S. Supreme Court has upheld California officials’

authority to conduct warrantless parole searches pursuant to this statute so long as

the searches are not “arbitrary, capricious, or harassing,” citing the state’s strong

interest in preventing recidivism. See Samson v. California, 547 U.S. 843, 850,


                                           3
856 (2006). California authorities may conduct parole searches at any time up

until the subject’s parole is formally revoked. See People v. Hunter, 45 Cal. Rptr.

3d 216, 221 (Cal. Ct. App. 2006).

      Davenport remained on parole at the time his parole officer searched his

phone, and he raises no argument that the search was arbitrary, capricious, or

harassing. Rather, he asks this court to accept his novel interpretation of a 2011

California statute re-aligning the state’s parole procedures, which, he argues,

implicitly eliminated the state’s longstanding investiture of authority in all of its

peace officers to conduct parole searches. We decline to do so, and affirm the

district court’s denial of this motion.

      3. Third, Davenport argues that the district court violated his Fifth

Amendment rights by permitting him to be shackled to a concrete bucket during

trial. Because Davenport did not object to his shackling and raises this argument

for the first time on appeal, we review for plain error. See Puckett v. United States,

556 U.S. 129, 134–35 (2009).

      Davenport has failed to establish the first prong of plain error review, that

the district court committed an error. See id. As his counsel conceded at oral

argument, our controlling precedential opinion is United States v. Cazares, 788

F.3d 956 (9th Cir. 2015). In that case, we held that “[v]isibility of the shackles [to


                                            4
the jury] is critical to the determination of the due process issue.” Id. at 966; see

also Cox v. Ayers, 613 F.3d 883, 890 (9th Cir. 2010) (applying a conjunctive four-

factor test to determine whether shackling was a due process violation; one factor

is whether the shackling was seen by the jury). Here, Davenport has presented no

evidence that his shackling was visible to the jury—rather, the record reflects that

the district court took care to ensure that the jury would be oblivious to the

shackling by placing skirts around the counsel tables and prohibiting the

government attorneys from standing up in the presence of the jury.

      4. Fourth, Davenport argues that the district court violated the

Confrontation Clause, U.S. CONST., amd. VI, by limiting his cross-examination of

a witness for the government. We review for harmless error. See Delaware v. Van

Arsdall, 475 U.S. 673, 684 (1986). Here, we conclude that even if the district court

erred in limiting cross-examination, any error was “harmless beyond a reasonable

doubt” and would not be sufficient to vacate his conviction. See id.

      On harmless error review, we consider “the importance of the witness’

testimony in the prosecution’s case, whether the testimony was cumulative, the

presence or absence of evidence corroborating or contradicting the testimony of the

witness on material points, the extent of cross-examination otherwise permitted,

and, of course, the overall strength of the prosecution’s case.” Id. Here, the


                                           5
prosecution presented overwhelming testimonial and forensic evidence against

Davenport, with electronic data and several other witnesses supporting the relevant

witness’s testimony. It is beyond any reasonable doubt that the jury’s verdict

would have remained the same even if Davenport had been permitted to ask the

two excluded questions aimed at impeaching this witness on a collateral issue.

      5. Finally, Davenport argues that the district court erred in denying his

motion for acquittal on a conspiracy charge under Federal Rule of Criminal

Procedure 29. We review this decision de novo and consider whether, in the light

most favorable to the government, “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v.

Christensen, 828 F.3d 763, 780 (9th Cir. 2015) (quoting United States v. Chapman,

528 F.3d 1215, 1218 (9th Cir. 2008)).

      Davenport has failed to establish that no rational jury could find him guilty

of conspiring to produce child pornography. The jury heard testimony from the

filmer of the pornography in question, who testified that Davenport gave her

specific and graphic instructions on how to abuse and distract the child victim

during filming. This evidence supports a reasonable inference that Davenport and

the filmer agreed to, and intended to, produce child pornography. See, e.g., United




                                          6
States v. Espinoza-Valdez, 889 F.3d 654, 656 (9th Cir. 2018) (elements of criminal

conspiracy).

                     II.   CHALLENGES TO THE SENTENCE

      1. First, Davenport contends that the district court violated the Ex Post

Facto Clause, U.S. CONST., art. I, § 9, cl. 3, in calculating his Guidelines range by

using the 2016 Sentencing Guidelines, which were in effect at the time of

sentencing, rather than the 2012 Sentencing Guidelines, which were in effect at the

time of the offense conduct. Because Davenport did not object to the use of the

2016 Guidelines at sentencing, we review for plain error. See Puckett, 556 U.S. at

134–35.

      The government concedes that the district court erred, and that the error was

plain. On the third prong of plain error review, we hold that the error affected

Davenport’s substantial rights. See id. at 135. “When a defendant is sentenced

under an incorrect Guidelines range—whether or not the defendant’s ultimate

sentence falls within the correct range—the error itself can, and most often will, be

sufficient to show a reasonable probability of a different outcome absent the error.”

Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016) (emphasis added).

Further, a Guidelines error that affects substantial rights ordinarily satisfies the

fourth prong of plain error review, that the error affects “the fairness, integrity or


                                            7
public reputation of judicial proceedings.” See Rosales-Mireles v. United States,

138 S. Ct. 1897, 1908 (2018). Thus, we conclude that the district court plainly

erred in applying the incorrect Sentencing Guidelines and vacate the sentence.

      2. Second, Davenport argues that the district court inappropriately

concluded that he was a “repeat and dangerous sex offender against minors” under

U.S.S.G. § 4B1.5(a). We review the district court’s application of the Guidelines

to particular facts for abuse of discretion. United States v. Gasca-Ruiz, 852 F.3d

1167, 1170 (9th Cir. 2017) (en banc).

      We hold that the district court abused its discretion. The court adopted the

findings of a Presentencing Investigation Report that contradicted itself, writing in

one section that Davenport’s 2011 California conviction for oral copulation with a

minor qualified him for the “repeat and dangerous” enhancement, and in another

section that it did not. We conclude that this conviction alone does not qualify

Davenport for the enhancement because the California offense conduct as

described in the record would not have been sufficient to convict Davenport of any

offense described in 18 U.S.C. § 2426(b)(1)(A) had it occurred under federal

jurisdiction. See U.S.S.G. § 4B1.5(a), n.3(A)(ii). We thus remand this matter for

the district court to reconsider whether Davenport was eligible for this

enhancement.


                                          8
      3. Third, Davenport argues that the district court erred in applying a

leadership enhancement under U.S.S.G. § 3B1.1(c). We conclude that the district

court did not abuse its discretion in doing so because application of this

enhancement merely requires a “showing that the defendant had control over

others.” United States v. Pimental-Lopez, 859 F.3d 1134, 1143–44 (9th Cir. 2016).

Here, Davenport’s co-conspirator provided detailed testimony, supported by text

messages and emails, about her role as a “slave” to Davenport’s “master.” The

evidence also established that Davenport provided specific and detailed

instructions to the co-conspirator at all stages of the offense.

      4. Finally, Davenport asserts that his 600-month prison sentence is

substantively unreasonable. Because the district court made two material errors in

its Guidelines calculation, we will remand for re-sentencing, without reaching the

question of whether the sentence as a whole is reasonable. United States v. Kilby,

443 F.3d 1135, 1140 (9th Cir. 2006) (citation omitted).

      For the forgoing reasons, we AFFIRM the judgment of conviction,

VACATE the sentence, and REMAND the matter to the district court for re-

sentencing consistent with our disposition.




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