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NOT FOR PUBLICATION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,
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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
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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
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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
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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
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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.
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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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