     Case: 10-20794     Document: 00511691764         Page: 1     Date Filed: 12/12/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 12, 2011

                                      No. 10-20794                         Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

BARRY LERNARD DAVIS, aka Sir Lewis,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-390-1


Before HIGGINBOTHAM, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:1
        Barry Lernard Davis, aka Sir Lewis, was found guilty by a jury of sex
trafficking of children in violation of 18 U.S.C. § 1591(a) (count one);
transportation of minors with intent to engage in criminal sexual activity in
violation of 18 U.S.C. § 2423(a) (count two); and coercion and enticement of an
individual to travel in interstate commerce to engage in prostitution or any
sexual activity for which an individual would be charged with a criminal offense,
in violation of 18 U.S.C. § 2422 (count three). The district court sentenced Davis

       1
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 10-20794

to the maximum guideline sentence: concurrent 405-month terms of
imprisonment on counts one and two, and a concurrent 240-month term of
imprisonment on count three. Davis was also sentenced to supervised release
for a life term. He filed this appeal, challenging the propriety of the judgment
of conviction and the sentence imposed.
                                        I
      On September 15, 2006, Pasadena Independent School District officer
Matthew Gray was alerted to the disappearance of CM, a 16-year old pregnant
female from Houston, Texas. During his investigation, Officer Gray discovered
that someone was accessing CM’s myspace account using an America Online
subscription owned by “sensual 107.” Another myspace webpage associated with
“sensual107" displayed nude photographs of CM. The American Online account
was traced back to Joe Davis, who told the police that it had been opened with
his credit card by his 32-year-old son, Barry Davis. Continued monitoring
revealed that CM’s myspace account was being accessed from a hotel in New
Orleans, Louisiana, where she was checked in under the alias “Cassandra
Gonzales.” Several days later it was accessed from a hotel at which Barry Davis
was staying in Canton, Mississippi.
      Officer Gray contacted Special Agent Patrick Fransen of the Federal
Bureau of Investigation (“FBI”) for assistance. Agent Fransen asked Joe Davis
to tell his son Barry to contact him. At trial, Agent Fransen testified that Barry
Davis called him that same evening, denied knowledge of CM’s whereabouts,
and promised that he would check with some of his “pimp partners” to see if he
could find her. Two days later, a very upset CM met her mother and Officer
Gray at a Greyhound Bus Station in Houston, Texas. She told Officer Gray that
she had been with Davis, and gave him a cell phone number matching the one
used by Davis in prostitution advertisements and when checking in to the hotel
in Canton, Mississippi. CM refused to cooperate any further.

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                                   No. 10-20794

      Around this same time, Agent Fransen received a telephone call from
Nichole Clock about an unrelated case. When she arrived at his office, Agent
Fransen noticed that Clock was in a car driven by Barry Davis, and that another
girl who appeared to be a juvenile was in the backseat of the vehicle. He
instructed Clock to call Davis to come pick her up. When Davis saw Agent
Fransen, he unsuccessfully attempted to flee.
      When asked who she was, the girl in the backseat of the car initially gave
Fransen a false identification card with the name “Cassandra Gonzales,” the
same alias used by CM. She eventually admitted that her real name was Amber
Case and that she was 18 years old. Davis consented to a search of his car, in
which officers discovered marijuana and a “pimp chalice” emblazoned with both
“Sir Louis” and “713,” Davis’s cell phone area code. They also found a laptop
computer belonging to Davis named “Sir Lewis” that contained photographs of
CM, Clock, and Case, and a spiral notebook with a note stating: “I, [CM], did
nothing illegal.” When asked if he was prostituting these girls, Davis replied
that “girls are going to do prostitution, everybody knows,” and that all of his girls
only gave “body rubs” to their clients.
      At trial, Officer Gray and Agent Fransen testified about all of the facts
uncovered during their investigation. CM and Clock also testified on behalf of
the government about their experiences with Davis.
      CM told the jury that she was a repeat runaway. At the age of 15, while
living on the street, she moved in with Barry Davis in Houston, Texas. She
testified that she told Davis she was a minor before their relationship became
sexual. Three months later, Davis ordered her to have sex with three men for
money, as it was time for her to give back to Davis for having provided for her.
      CM explained that she continued to prostitute for Davis in order to survive
and to keep the material goods that he gave her, such as designer clothes.
Several months later she became pregnant and returned home. A short while

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                                 No. 10-20794

later, however, and still pregnant, she returned to Davis. She testified that
Davis advertised her services online using nude pictures, several of which were
shown at trial, and took her to Memphis, Tennessee and New Orleans,
Louisiana, to prostitute for him. Donna Davis, a hotel employee in Metarie,
Louisiana, testified about one of their stays at her hotel, including a scene they
created when Davis had provocative pictures of CM taken in the hotel’s fountain.
      Davis brought CM back to Houston, CM testified, after receiving a call
from Agent Fransen. Davis told CM that “they”were looking for her and ordered
her to write a note in his spiral notebook stating that she had never engaged in
sexual activity with him. CM obeyed because she was afraid of Davis, who was
abusive. Davis left CM at a Greyhound bus stop where she met her mother and
Officer Gray. Once again, however, CM found life at home difficult and returned
to Davis. This time Davis had her tattoed with “SL,” which stood for his pimp
moniker “Sir Lewis.” A month later CM ran away from Davis for the last time.
      Nichole Clock also testified at trial about her time prostituting for Davis.
Clock told the jury about the “rules” used by pimps to maintain control over the
women who prostitute for them, and stated that Davis had her tattooed with his
pimp moniker, “Sir Lewis,” on the back of her neck. She explained that she
prostituted for Davis because they were romantically involved and because she
was afraid of him. She also claimed that he took her to multiple cities to
prostitute, including Chicago, St. Louis, New York, New Jersey and New
Orleans. Pictures of Clock and Davis in several of those cities were found on
Davis’s computer and presented at trial. Clock eventually ran away from Davis,
but returned to him in September 2006. She left him permanently after Davis
attacked her while she was in the hospital.
      The jury found Davis guilty on all three counts against him. The district
court sentenced him to three concurrent terms of imprisonment: 405 months on
counts one and two, and 240 months on count three.

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                                        No. 10-20794

                                                II
       Davis first argues that his equal protection rights were violated when
testimony by government witnesses regarding the culture of prostitution turned
racial, allowing the jury to consider race as a factor in determining his guilt.
       Because Davis did not object to this testimony at trial, our review is for
plain error. To prevail under this standard, Davis must demonstrate that “(1)
there was an error; (2) the error is plain; and (3) the error affected [his]
substantial rights, was prejudicial and affected the outcome of the district court
proceeding.”2 Furthermore, we exercise our discretion to correct such an error
only if it “seriously affects the fairness, integrity or public reputation of judicial
proceedings.”3 This requires Davis to show a reasonable probability that the
alleged error affected the outcome of the trial.4 Davis carries the burden of
persuasion.5
       It is undisputed that prosecutorial use of a criminal defendant’s race as
evidence of guilt violates that defendant’s due process and equal protection
rights.6 Davis alleges that the government engaged in such conduct during his

       2
        United States v. Bishop, 629 F.3d 462, 468 (5th Cir. 2010) (internal quotation marks
omitted); see also FED. R. CRIM. P. 52(b) (“Plain error. A plain error that affects substantial
rights may be considered even though it was not brought to the court’s attention.”).
       3
           Bishop, 629 F.3d at 468 (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
       4
          United States v. Olano, 507 U.S. 725, 734 (1993); see also United States v. Marcus, 130
S. Ct. 2159, 2166 (2010) (“In cases applying this fourth criterion, we have suggested that, in
most circumstances, an error that does not affect the jury’s verdict does not significantly
impugn the fairness, integrity, or public reputation of the judicial process.”) (internal citations
omitted); Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (“Meeting all four prongs is
difficult, as it should be.”) (internal quotation marks omitted).
       5
           Olano, 507 U.S. at 734–35.
       6
         See, e.g., McCleskey v. Kemp, 481 U.S. 279, 310 n. 30 (1987) (“The Constitution
prohibits racially biased prosecutorial arguments.”); Bains v. Cambra, 204 F.3d 964, 974 (9th
Cir. 2000) (use of race or ethnicity to establish guilt “violates a criminal defendant’s due
process and equal protection rights”); United States v. Doe, 903 F.2d 16, 25 (D.C. Cir. 1990)
(“Racial fairness of the trial is an indispensable ingredient of due process and racial equality

                                                5
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                                       No. 10-20794

trial four times by eliciting racial testimony and repeating it during the
prosecution’s closing argument. That testimony, Davis argues, impermissibly
suggested to the jury that Davis – a black man – was more likely by virtue of his
race to be a pimp, and therefore guilty of the crime charged against him.
       The first time that the jury heard the challenged testimony was during the
direct examination of Nichole Clock, a former prostitute who testified for the
government regarding her experience with Davis as her pimp and about the
rules used by Davis and other pimps to coerce prostitutes into remaining under
their control. Clock explained that she gave all the money she earned to Davis
because she was required to do so by “the rules of the game.”
               Prosecutor: And do [pimps] all pretty much go by this
               code of rules?
               Clock: Yes.
               Prosecutor: Can you give me an example? What are
               some of the rules that these pimps would have?
               Clock: You can’t look at other black men. All the
               money goes to them.
               Prosecutor: Let’s slow down. Why can’t you look at
               other black men? I would assume there is a reason for
               the rules; is that correct?
               Clock: Yes.
               Prosecutor: Why can’t you look at other black men?
               Clock: Because they are afraid that they will lose you
               for the next black man.
               Prosecutor: How is that possible?
               Clock: They could be cuter. They could be nicer. They
               could be more suave, I guess.
               Prosecutor: What if you looked at them, what would
               happen?
               Clock: Sometimes you would get in trouble, like,
               getting your a** beat.
               Prosecutor: Who would beat you?
               Clock: Either your pimp or the one you looked at.



a hallmark of justice.”).

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                                 No. 10-20794

      Later during Clock’s testimony, the prosecutor repeated this testimony
when asking Clock how she had come to work for Davis.
            Prosecutor: How did you meet the defendant?
            Clock: I believe he drove by and we made eye contact,
            and then he got out of the car and came over and talked
            to me.
            Prosecutor: Okay. But wasn’t that dangerous for you to
            make eye contact with him? He is a black male.
            Clock: He is, but I knew that [my pimp] was in [another
            city], so there wasn’t really anything he could do to me.
      Another government witness, FBI Special Agent Vanessa Walther, was
also called by the prosecution to testify about how the “rules of the game” are
used by pimps to control prostitutes. She gave a similar account.
            Prosecutor: When you say there are rules about how
            [prostitutes] relate to other pimps, what are you talking
            about?
            Agent Walther: Basically a girl is told that she should
            not date another black male, because he might be a
            pimp. She is not allowed to make eye contact with
            another pimp. Because if she does, she is considered to
            be what they call “out of pocket.” And that will allow
            the pimp that she has made eye contact with to actually
            take her and take the money that she has on her, if she
            has any at that time. And she becomes his property at
            that point.
      Finally, the prosecution referred back to this testimony during its closing
argument. After reviewing evidence that Davis had coerced girls and women
into working as prostitutes for him, the prosecutor stated:
            Everything they did was completely controlled by Barry
            Davis. And the rules of the game: You don’t look at
            another black man. You don’t get out of pocket. You
            work for me. You are my property. And it was
            brilliant, because unlike a commodity that one sells, he
            sold these girls over and over and over again.
      Both parties agree that the testimony in this case closely resembles
testimony that this court held was erroneously admitted in United States v.

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                                           No. 10-20794

Anderson.7 In that case, an FBI special agent testifying about the culture of
prostitution stated that prostitutes avoid making eye contact with black males
because of the risk that “he might be another pimp.”8 We concluded then, as we
do now, that it was error for the court to allow such testimony. “Testimony from
a prosecution witness stating or implying that persons of the same race as the
defendant are more likely to commit certain crimes is impermissible, both on
constitutional grounds and because its probative value is outweighed by its
danger of unfair prejudice.”9 As in Anderson, the government argues today that
this testimony was permissible because it was for the innocuous purpose of
showing how pimps coerce prostitutes into working for them. While this may
have been the intention, error nonetheless occurred when the testimony turned
racial such that it may have implied to a reasonable juror that the defendant
was more likely to have been a pimp by virtue of being a black male.
       To obtain relief, however, Davis must also persuade us that there is a
reasonable probability that the outcome of his trial would have been different
without this testimony. In Anderson, we concluded that the error was harmless
beyond a reasonable doubt because it was not probable, given the overwhelming
evidence against the defendant, that the verdict would have been different had




       7
           560 F.3d 275 (5th Cir. 2009).
       8
          Id. at 280.
“Agent: One of the rules is that a girl is told not to look or make eye contact with any young
Black male because he might be another pimp.
The Court: Well what about potential customers? How does that jibe with the–that rule?
Agent: Most of the girls will not have a date with a young Black male. They will avoid that.
A lot of them avoid all Black males in general.
The Court: Why is that? Is there a reason for that?
Agent: The reason is mainly they’re afraid that that’s going to be a pimp–.”
Id.
       9
           Id. at 281.

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                                 No. 10-20794

the challenged testimony been excluded.10 Davis correctly points out that the
challenged testimony was repeated four times over the course of the trial,
whereas in Anderson it was heard by the jury only once and not repeated by the
prosecutor during his closing statement. While we agree that this distinguishes
this case from Anderson, Davis has not demonstrated that these repetitions were
sufficient to make it reasonably probable that the jury’s verdict was influenced
by them.
      The evidence presented against Davis during the three-day trial was
overwhelming. Two women testified to their personal experiences working as
Davis’s prostitutes, one while she was only fifteen years of age, and the details
of their stories corroborated one another. Evidence from Davis’s computer, from
his car, and from a New Orleans employee also linked Davis to the interstate
prostitution business and to the women testifying against him. Finally, a local
police officer and two FBI agents testified as to their investigations into the
crimes alleged against Davis. Given the wealth of evidence amassed against
him, we cannot conclude that there is a reasonable probability that the jury
would have come to a different conclusion regarding Davis’s guilt if the four
statements about looking at black men had been excluded by the district court.
      The cases relied on by Davis are not inapposite. Davis points to three
cases where circuit courts found reversible error based on testimony linking the
defendant’s alleged criminal actions to his ethnic background. In each of these
cases, however, the challenged testimony was significantly more pervasive and
inflammatory than it was here. In United States v. Vue, a customs officer
testified against defendants of Hmong descent, and repeatedly stated that
persons of Hmong descent controlled approximately 95% of the opium trade in




      10
           Id.

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                                        No. 10-20794

that region.11 Unlike in this case, the references made were not cursory, but
instead constituted a considerable portion of the testimony of the government’s
key witness.12 Given the pervasive nature of these statements “inject[ing]
ethnicity into the trial” and “clearly invit[ing[ the jury to put the Vues’ racial and
cultural background into the balance in determining their guilt,” the court
concluded that the admission of the evidence was not harmless beyond a
reasonable doubt and thus that the Vues’ convictions were subject to reversal.13
       In United States v. Doe, a circuit court again concluded that the admission
of testimony by an expert witness was not harmless error.14 In that case, an
expert witness repeatedly emphasized control over the drug trade by
Jamaicans.15 In its closing statement, the prosecution repeatedly referred to this
testimony, referred to the defendants as “Jamaicans,” and made inflammatory
statements that “Jamaicans...[are] coming in [and] taking over the retail sale of
crack in Washington D.C.,” and Jamaicans are “coming into the apartments,
they’re taking them over, they’re using them for drugs, they’re using them to
package the drugs, to cook them, and to sell them on the street.”16 The court
concluded that these racial arguments coupled with the “hardly overwhelming”
evidence of guilt presented against the defendants meant that the admission of
the testimony was not harmless error.17

       11
            13 F.3d 1206 (8th Cir. 1994).
       12
            Id. at 1211–13.
       13
            Id. at 1213.
       14
            903 F.2d 16 (D.C. Cir. 1990).
       15
            Id. at 19–20.
       16
            Id. at 26–27.
       17
         Id. at 28 (“Several circumstances tended positively to show that appellants were not
the operators of the drug-distribution enterprise based therein; indeed, the jury in the first
trial was unable to agree that any appellant was guilty of any of the offenses charged.”).

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                                           No. 10-20794

      Finally, in United States v. Rodriguez Cortes, the district court admitted
into evidence an identification card showing that the defendant was of
Colombian descent.18 This card had virtually no probative value; it was used by
the government instead to argue that it showed the defendant was Colombian
and therefore that known Colombian drug dealers would have trusted him. The
prosecutor stated in closing, “[y]ou also have a Colombian I.D....This man, this
young man has ties with Colombia, from there you can reasonably infer why
Libardo Sierra was calling him his friend.”19 The court concluded that in
context, the sole purpose of the admitted evidence was an appeal to the jury to
believe that a person born in Colombia must be involved in drug trafficking.
      The challenged testimony and prosecutorial statement in Davis’s case,
while improper, were not of such frequency, length, or of such an inflammatory
nature as to call into doubt the overall fairness of his trial. The improper
statements constituted only a few cursory references in the course of a three-
days trial during which the government presented a great deal of direct and
circumstantial evidence on all three counts against the defendant.                Thus,
because he has not shown that the error affected his substantial rights and
seriously affected the integrity of the proceeding below, Davis is not entitled to
relief on his first ground of appeal.
                                               III
      The second challenge raised by Davis against his conviction is that the
evidence presented against him at trial was insufficient to establish his guilt
beyond a reasonable doubt. Davis was convicted of all three counts alleged
against him. He challenges the sufficiency of the evidence for each of these by




      18
           949 F.2d 532 (1st Cir. 1991).
      19
           Id. at 541.

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                                       No. 10-20794

arguing that two government witnesses, CM and Nichole Clock, were not
credible.
      Our review of a jury verdict is “highly deferential.”20 “This court must
affirm a conviction if the evidence, viewed in the light most favorable to the
verdict, with all reasonable inferences and credibility choices made in support
of it, is such that a trier of fact reasonably could have found the essential
elements of the crime beyond a reasonable doubt.”21 By following this standard,
we recognize that it is “the responsibility of the trier of fact to fairly resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.”22 Thus, so long as any rational
trier of fact could have found that the essential elements of the defendant’s crime
were proven beyond a reasonable doubt, we affirm the verdict.23
      To find Davis guilty of count one (sex trafficking of children), the jury had
to find beyond a reasonable doubt that Davis knew CM was a minor and that
Davis intended to transport CM out of state to engage in prostitution. To find
him guilty of count two (transportation of minors with intent to engage in
criminal sexual activity), the jury had to find beyond a reasonable doubt that
Davis actually did transport CM across state lines with the intent of engaging
in criminal sexual activity. Davis contends that the only proof of these elements
was provided by CM’s testimony, and that her testimony was not credible both
because it had inconsistencies, and because CM is a prostitute and “part of the
game of prostitution is to lie.” To find Davis guilty of count three (coercion and
enticement), the jury had to find beyond a reasonable doubt that Davis coerced


      20
           United States v. McNealy, 625 F.3d 858, 870 (5th Cir. 2010).
      21
           United States v. Pando Franco, 503 F.3d 389, 393–94 (5th Cir. 2007).
      22
           Jackson v. Virginia, 443 U.S. 307, 319 (1979).
      23
           United States v. Ramirez, 954 F.2d 1035, 1037 (5th Cir. 1992).

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                                 No. 10-20794

Nichole Clock to travel in interstate commerce in order to engage in prostitution.
The only evidence for this count, Davis claims, was the testimony of Nichole
Clock. That testimony was not credible for the same reasons listed against CM’s
testimony: it had inconsistencies, and was given by a prostitute.
      Davis’s argument is unavailing. First, the mere fact that CM and Clock
were, or are, engaged in prostitution does not mean that they could not serve as
honest and credible witnesses. The jury heard these two women’s testimony and
had an opportunity to evaluate their credibility in person during the course of
the trial. They also had the benefit of extensive cross-examination of both CM
and Clock by Davis’s attorney, which delved into their pasts, their motivations
for testifying, and the preparation that they received from the prosecution before
testifying. After all of this, the jury apparently concluded that these witnesses
were credible, and we find no reason to overcome its determination.
      Davis also contends that no rational trier of fact could have believed CM
and Clock’s testimony because their statements were riddled with
inconsistencies. However, Davis fails to identify any actual inconsistencies in
these women’s stories, and a review of the trial transcript did not reveal any to
this court.   Furthermore, the details given by CM and Clock about their
experiences with Davis were corroborative of one another. Finally, although
testimony by CM and Clock was a key part of the government’s case against
Davis, the prosecution also had a substantial amount of additional evidence
establishing his guilt on all three counts. In addition to testimony by two FBI
agents and a Houston area police officer who participated in the investigation,
the prosecution presented at trial testimony by a Louisiana hotel clerk and
physical evidence obtained from Davis’s car and computer linking him to the
alleged crimes. This testimony and evidence corroborated the stories that the
jury heard from CM and Clock.



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                                        No. 10-20794

      For the foregoing reasons, we cannot conclude that CM and Clock were
unreliable witnesses or that the government had insufficient evidence to convict
Davis. Therefore, we affirm his conviction.
                                               IV
      Davis’s final argument on appeal challenges the sentence imposed under
the guidelines by the district court.
      This court “review[s] the district court’s interpretation or application of the
Sentencing Guidelines de novo and its factual findings for clear error.”24 The
district court may consider the presentence report (“PSR”) as evidence in making
factual determinations, and “may adopt the facts contained in [it] without
further inquiry if those facts have an adequate evidentiary basis with sufficient
indicia of reliability and the defendant does not present rebuttal evidence or
otherwise demonstrate that the information in the PSR is unreliable.”25 It is the
defendant’s burden to prove that information in the PSR is materially untrue.26
      A. Repeat and dangerous sex offender against minors
      Davis challenges the district court’s calculation of his sentencing guideline
range. He contends that the district court erred when it applied a five-level
enhancement to his offense level on the basis that he had engaged in a pattern
of activity involving prohibited sexual conduct with minors under U.S.S.G. §
4B1.5(b)(1).
      The district court’s decision to apply the five-level enhancement was based
on the PSR. The PSR alleged that Davis had engaged in sexual conduct with
RD, a sixteen-year-old girl, on at least two occasions, and had acted as RD’s
pimp. All of these allegations were based on the investigative files and reports


      24
           United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007).
      25
           United States v. Cabrera, 288 F.3d 163, 173–74 (5th Cir. 2002).
      26
           United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995).

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                                        No. 10-20794

of the Houston Police Department. In 2005, Davis was arrested and questioned,
and released on bond. State charges related to the incident were eventually
dismissed for unspecified reasons. Given the similarity of this conduct and
Davis’s conduct with CM, the PSR concluded that Davis had engaged in a
pattern of activity involving prohibited sexual conduct with minors, and
therefore that he was subject to a five-level enhancement under the guidelines.
        Davis argues that the district court could not use these allegations as the
basis of the enhancement because they were not credible. We disagree. The
PSR stated that all of its claims regarding Davis’s conduct with RD were based
on the investigative reports of the Houston Police Department.                    These
allegations therefore had a sufficient evidentiary basis and indicia of reliability,
which permitted to the district court to rely on them in determining Davis’s
sentence.27
        In order to overcome this presumption of reliability, Davis must provide
evidence that these allegations are materially untrue. He has failed to do so.
Before the district court, Davis objected that “there is insufficient evidence to
show that the defendant engaged in a pattern of activity involving prohibited
sexual conduct.” On appeal, he repeats his claim of insufficient evidence, and
alleges that the state dismissed the charges against Davis due to lack of evidence
against him. However, Davis does not provide anything, other than these
unsupported assertions, to demonstrate that the PSR’s allegations are baseless
or that lack of evidence was the reason why the charges against him regarding
his alleged conduct with RD were dismissed. Because Davis has not shown that
the district court erred in relying on the PSR when applying the five-level
enhancement under U.S.S.G. § 4B1.5(b)(1), his claim for relief is denied.
B.      Enhancement under U.S.S.G. 2G1.3(d)(1)


        27
             See Cabrera, 288 F.3d at 173–74.

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                                          No. 10-20794

         Davis’s second sentencing argument challenges the district court’s decision
to apply a two-level multiple count adjustment under U.S.S.G. § 3D1.4, based on
Davis’s alleged conduct with RD.
         U.S.S.G. § 2G1.3(d)(1) provides:
                  If the offense involved more than one minor, [the
                  multiple count adjustment of Chapter Three] shall be
                  applied as if the persuasion, enticement, coercion,
                  travel, or transportation to engage in a commercial sex
                  act or prohibited sexual conduct of each victim had been
                  contained in a separate count of conviction.
         “Offense” is defined by Application Note 1(H) of U.S.S.G. § 1B1.1 as the
“offense of conviction and all relevant conduct under 1B1.3. (Relevant Conduct)
unless a different meaning is specified or is otherwise clear from the context.”
Because Davis’s alleged conduct with RD was not part of the offense for which
Davis was convicted, it could only be used for a multiple count adjustment if it
was part of the relevant conduct of that offense. Relevant conduct is defined
under U.S.S.G. 1B1.3(a)(1)(A) as “all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or willfully caused by the
defendant....during the commission of the offense of conviction, in preparation
for that offense, or in the course of attempting to avoid detection or responsibility
for that offense.
         Davis correctly points out that his alleged misconduct with RD did not
occur during his offense of conviction, as it was alleged to have happened on and
before February 22, 2005, while his charged conduct with CM occurred from on
or about June 1, 2006 to September 22, 2006. The government does not argue,
either on appeal or before the district court, that a different definition for
“relevant conduct” is provided under the guidelines or is clear from context.28



         28
              Indeed, the government failed to provide any response to Davis’s argument on this
point.

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  Case: 10-20794    Document: 00511691764     Page: 17   Date Filed: 12/12/2011




                                 No. 10-20794

Therefore, we conclude that the district court erred in using the alleged conduct
between Davis and RD as the basis for a multiple count adjustment under
Chapter Three.     Without that adjustment, there would not have been an
adjusted offense level for “pseudo count R.D.” or “pseudo count CM” under the
multiple-count adjustment provisions of U.S.S.G. § 3D1.4, and Davis’s total
offense level would have been 35 instead of 37. This lower offense level,
combined with Davis’s Criminal History Category of V, would have resulted in
a guidelines sentencing range of 262 to 327 months imprisonment instead of a
range of 324 to 405 months. Accordingly, we vacate this portion of Davis’s
sentence, and remand to the district court for resentencing in accordance with
this opinion.
                                       V
      For the foregoing reasons, Davis’s conviction is AFFIRMED. His sentence
on counts 1 and 2 is VACATED in part, and REMANDED for resentencing in
accordance with this opinion.




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