United States v. Terry Davy

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0605n.06

No. 16-4081

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ) FILED
Nov 01, 2017
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE
TERRY A. DAVY, ) NORTHERN DISTRICT OF
) OHIO
Defendant-Appellant. )
)

BEFORE: GIBBONS, COOK, and THAPAR, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Terry Davy pled guilty to being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The United States Probation

Office recommended a total offense level of 26, calculated from a base offense level of 24 under

USSG § 2K2.1(a)(2) due to Davy’s two prior felony convictions, plus a two-level enhancement

pursuant to USSG § 2K2.1(b)(4)(A) because the firearm in question was stolen. At sentencing,

the government agreed to a three-level reduction for acceptance of responsibility under USSG

§ 3E1.1. The district court followed the recommendation and sentenced Davy to an in-guideline

110 months’ imprisonment. Davy did not object to the sentencing calculation.

Davy has now challenged his sentencing on appeal. Additionally, the government has

filed a motion for this Court to take judicial notice of facts contained in state court documents

pertaining to one of Davy’s prior felony convictions. For the reasons addressed below, we grant

the government’s motion to take judicial notice and affirm the district court’s sentence.
No. 16-4081, United States v. Davy

On February 21, 2016, Cleveland police initiated a traffic stop when Terry Davy failed to

use a turn signal before making a turn. After pulling over, however, Davy and another individual

fled the vehicle on foot. While fleeing, Davy attempted to hide a loaded firearm in a fenced

courtyard. Officers subsequently detained Davy and his passenger and recovered the firearm.

Davy was indicted on March 9, 2016, on one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). On May 2, 2016, Davy pled guilty to the

indictment without a plea agreement.

The United States Probation Office prepared a presentence report (PSR), which

calculated a base offense level of 24 under USSG § 2K2.1(a)(2) due to Davy’s two prior felony

convictions for crimes of violence or controlled substance offenses. The PSR also recommended

a two-level enhancement pursuant to USSG § 2K2.1(b)(4)(A) because the “firearm possessed by

[Davy] was stolen.” DE 24, PSR, Page ID 119. The PSR did not include any reduction in the

offense level for acceptance of responsibility, but at the sentencing hearing, the government

agreed to a three-level reduction on that ground. Accordingly, the district court found a total

offense level of 23, corresponding with a recommended guideline range of 92 to 115 months.

Except for requesting a reduction for acceptance of responsibility, Davy did not object to

the sentencing calculations in the PSR nor did he object to the sentencing calculations employed

at the hearing. Instead, Davy merely argued for a downward variance based upon his personal

history and characteristics. The district court, however, denied this request and sentenced Davy

to 110 months of incarceration with three years of supervised release.

Immediately following the issuance of the sentence, the district court asked Davy’s

counsel if he had any objection, to which counsel responded: “It’s an in-Guideline sentence

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No. 16-4081, United States v. Davy

based on calculations[,] so no objection.” DE 38, Sentencing Tr., Page ID 243. Despite the lack

of objections at or before the hearing, however, Davy appealed, challenging his sentencing

calculation on various grounds.

In response to one of Davy’s challenges, the government has filed a motion for this Court

to take judicial notice of the fact that Davy was convicted under a specific subsection of Ohio’s

felonious assault statute. The motion was subsequently referred to this panel.

II.

Because Davy failed to object to his sentencing calculation in the PSR or at the

sentencing hearing, his appeal is reviewed for plain error. United States v. Vonner, 516 F.3d

382, 385 (6th Cir. 2008); see also FED. R. CRIM. P. 52(b). To satisfy plain error review, the

appellant must show “(1) error (2) that ‘was obvious or clear,’ (3) that ‘affected defendant’s

substantial rights’ and (4) that ‘affected the fairness, integrity, or public reputation of the judicial

proceedings.’” Vonner, 516 F.3d at 386 (quoting United States v. Gardiner, 463 F.3d 445, 459

(6th Cir. 2006)).

III.

Davy challenges his sentence on three grounds. First, he contends that the district court

erred in finding that his prior felonious assault conviction in Ohio qualified as a crime of

violence under USSG § 2K2.1(a)(2) because Ohio’s felonious assault statute is divisible and the

district court did not apply a modified categorical analysis to determine under which subsection

of the statute he was convicted. Second, he contends the district court failed to adequately

explain its reasoning for denying his request for a downward variance. Third, he contends the

district court erred in relying on the presentence report to find the firearm in his possession was

stolen for purposes of the USSG § 2K2.1(b)(4)(A) enhancement because the allegations in the

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No. 16-4081, United States v. Davy

report lacked sufficient indicia of reliability. As explained below, all three challenges are

unavailing.

Pursuant to USSG § 2K2.1(a)(2), a defendant qualifies for a base offense level of 24 if

the crime was committed “subsequent to sustaining at least two felony convictions of either a

crime of violence or a controlled substance offense.” U.S. SENTENCING GUIDELINES MANUAL §

2K2.1(a)(2) (U.S. SENTENCING COMM’N 2016). Here, the sentencing calculation in the PSR

relied on two prior felony convictions for applying the § 2K2.1(a)(2) enhancement: (1) a federal

conviction for possessing with intent to distribute cocaine base and (2) an Ohio conviction for

felonious assault. Although Davy failed to challenge the application of USSG § 2K2.1(a)(2)

prior to his sentencing, and even calculated a base offense level of 24 in his own sentencing

memorandum,1 he now asserts for the first time on appeal that the district court committed plain

error when it failed to review the applicable state court documents under a modified categorical

approach and instead relied solely on the allegations in the PSR to determine that his Ohio

felonious assault conviction qualified as a crime of violence. However, while the district court

did err in failing to apply the modified categorical approach to calculate Davy’s base offense

level, this failure does not constitute plain error because the state court documents provided by

the government in its motion demonstrate that Davy’s felonious assault conviction does, in fact,

qualify as a crime of violence.

1
Davy also did not challenge the application of USSG § 2K2.1(a)(2) for his base offense level during his appeal of
the sentencing for a prior felon in possession conviction. See United States v. Davy, 433 F. App’x 343, 345–48 (6th
Cir. 2011).

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No. 16-4081, United States v. Davy

A “crime of violence” under USSG § 2K2.1(a)(2) is defined as:

[A]ny offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical
force against the person of another, or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion, or the use or unlawful
possession of a firearm described in 26 U.S.C. § 5845(a) or explosive
material as defined in 18 U.S.C. § 841(c).

U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) (U.S. SENTENCING COMM’N 2016); see id.

§ 2K2.1 cmt. n.1 (“‘Crime of violence’ has the meaning given that term in §4B1.2(a).”). Ohio’s

felonious assault statute prohibits the following conduct:

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another’s unborn;

(2) Cause or attempt to cause physical harm to another or to another’s
unborn by means of a deadly weapon or dangerous ordnance.

(B) No person, with knowledge that the person has tested positive as a carrier of a
virus that causes acquired immunodeficiency syndrome, shall knowingly do any
of the following:

(1) Engage in sexual conduct with another person without disclosing that
knowledge to the other person prior to engaging in the sexual conduct;

(2) Engage in sexual conduct with a person whom the offender knows or
has reasonable cause to believe lacks the mental capacity to appreciate the
significance of the knowledge that the offender has tested positive as a
carrier of a virus that causes acquired immunodeficiency syndrome;

(3) Engage in sexual conduct with a person under eighteen years of age
who is not the spouse of the offender.

OHIO REV. CODE ANN. § 2903.11.

As this Court has previously recognized, while “subsection A of [Ohio’s] felonious

assault statute qualifies as a violent felony, subsection B, which prohibits persons who know that

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No. 16-4081, United States v. Davy

they have HIV or AIDS from engaging in sexual conduct under certain circumstances, does not

readily qualify as a violent felony.” United States v. Anderson, 695 F.3d 390, 402 (6th Cir.

2012). Therefore, a conviction under subsection A qualifies as a crime of violence under USSG

§ 2K2.1(a)(2), but a conviction under subsection B does not. See United States v. Hibbit, 514 F.

App’x 594, 597 (6th Cir. 2013). Accordingly, Ohio Rev. Code § 2903.11 is what is known as a

“divisible statute,” and when considering prior convictions under divisible statutes at sentencing,

courts should employ a “modified categorical approach” “to determine which alternative

[subsection] formed the basis of the defendant’s prior conviction.” Descamps v. United States,

133 S. Ct. 2276, 2281 (2013).

Under a modified categorical approach, courts “look beyond the statutory language and

examine certain state-court documents (the ‘Shepard documents’) to determine whether the

conviction necessarily depended on the commission of a crime of violence.” United States v.

Rede-Mendez, 680 F.3d 552, 556 (6th Cir. 2012) (citing United States v. McMurray, 653 F.3d

367, 372 (6th Cir. 2011)); see also Shepard v. United States, 544 U.S. 13, 16–17 (2005). “Such

documents can include the ‘charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to which the defendant

assented . . . .’” Rede-Mendez, 680 F.3d at 556 (quoting Shepard, 544 U.S. at 16); see Anderson,

695 F.3d at 402 (“[A] ‘court may consider the indictment, guilty plea, or similar documents to

determine whether they necessarily establish the nature of the prior conviction.’”) (quoting

United States v. Gibbs, 626 F.3d 344, 352 (6th Cir. 2010)). Importantly, however, using “the

factual description of a prior conviction contained in a PSR to determine if the prior conviction is

a ‘crime of violence’ does ‘not adhere to the dictates of . . . Shepard.’” United States v. Wynn,

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No. 16-4081, United States v. Davy

579 F.3d 567, 575–76 (6th Cir. 2009) (quoting United States v. Bartee, 529 F.3d 357, 361 (6th

Cir. 2008)).

In this case, the district court failed to apply the modified categorical approach. Instead,

the court relied on the information contained in the PSR to find that Davy’s felonious assault

conviction qualified as a crime of violence under USSG § 2K2.1(a)(2). Because “‘a PSR

prepared for a federal district-court sentencing can never be a record of a convicting state court,’

and thus it ‘may not properly be considered [to determine eligibility for a sentence

enhancement],’ . . . the district court erred in relying on the PSR,” notwithstanding Davy’s

failure to either raise the issue or object to the calculation during sentencing. United States v.

Ferguson, 681 F.3d 826, 832 (6th Cir. 2012) (quoting Wynn, 579 F.3d at 577 and United States

v. France, 394 F. App’x 246, 248 (6th Cir. 2010)) (alterations in original). This failure,

however, does not end our analysis.

In response to Davy’s argument on appeal, the government has asked this Court to take

judicial notice of the fact that Davy was in fact convicted under subsection A of Ohio Rev. Code

§ 2903.11 based on three Ohio state court Shepard documents pertaining to his felonious assault

conviction: the indictment and two state-court “journal entries” detailing his plea and sentencing.

Federal Rule of Evidence 201 provides that “at any stage of the proceeding,” “[t]he court may

judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately

and readily determined from sources whose accuracy cannot reasonably be questioned.” FED. R.

EVID. 201(b), (d). “Judicial records are a source of ‘reasonably indisputable accuracy’ when

they record some judicial action such as dismissing an action, granting a motion, or finding a

fact.” Ferguson, 681 F.3d at 834 (quoting 21B Charles Alan Wright et al., Federal Practice and

Procedure § 5106.4 (2d ed. 2005)). Accordingly, this Court on appeal may take judicial notice

7
No. 16-4081, United States v. Davy

of facts contained in state court documents pertaining to Davy’s prior conviction so long as those

facts can be accurately and readily determined. Id. at 834–35 (applying Rule 201 to judicially

notice facts supported by state court documents not included in the record on appeal).

Further, because Davy did not object to the application of USSG § 2K2.1(a)(2) at

sentencing, this Court reviews the district court’s failure to use the modified categorical approach

under the plain error standard, the third prong of which requires that the error “affected [the]

defendant’s substantial rights.” Vonner, 516 F.3d at 386. “A sentencing error affects a

defendant’s substantial rights when there is a reasonable probability that, but for the error, [the

defendant] would have received a more favorable sentence.” Ferguson, 681 F.3d at 833 (quoting

United States v. Wilson, 614 F.3d 219, 223 (6th Cir. 2010)) (alterations in original). Therefore, if

upon review of the Shepard documents now presented by the government in its Motion to Take

Judicial Notice, we determine that Davy’s felonious assault conviction does in fact qualify as a

crime of violence, the district court’s failure to conduct its own modified categorical analysis

before reaching this conclusion will have had no effect on Davy’s substantial rights and would

not rise to the level of plain error. See id. at 833–36 (affirming a sentence enhancement under

plain error review where the district court erroneously relied on information in the PSR because

the Shepard documents noticed by this Court on appeal demonstrated the defendant was eligible

for such an enhancement); United States v. Wyatt, 189 F. App’x 418, 422 (6th Cir. 2006)

(defendant’s substantial rights were not affected where the state court indictments, presented for

the first time on appeal, demonstrated his eligibility for the sentence enhancement).

Davy correctly does not dispute that the indictment and journal entries presented by the

government are legitimate Shepard documents or that this Court may review these documents on

appeal. See United States v. Adkins, 729 F.3d 559, 568 (6th Cir. 2013) (finding an Ohio state

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No. 16-4081, United States v. Davy

court journal entry to be a “valid Shepard document that is properly considered by a court in

determining the nature of a prior conviction”). Instead, Davy’s opposition to the government’s

motion rests solely on his claim that there are certain factual discrepancies in the documents that

leave the question of whether Davy’s conviction was under subsection A of the felonious assault

statute in “reasonable dispute.” Our review of the Shepard documents, however, does not reveal

any factual discrepancies that place the question of which subsection Davy was convicted under

into reasonable dispute.

Although it does not specify the subsection of the statute under which he was charged,

Davy’s felonious assault indictment alleges that Davy “did knowingly cause serious physical

harm to [redacted] and/or did knowingly cause or attempt to cause physical harm to [redacted]

by means of a deadly weapon or dangerous ordnance . . . .” CA6 R. 36, Reply to Resp. to Mot.

to Take Judicial Notice, at 10. This language almost exactly tracks the language from subsection

A of the Ohio statute. See OHIO REV. CODE ANN. § 2903.11(A). Furthermore, the journal entries

state that Davy “enter[ed] a plea of guilty to felonious assault R. C. 2903.11 . . . as amended in

count one” and subsequently “ple[]d guilty to felonious assault ORC 2903.11 . . . as amended in

count 1.” CA6 R. 36, Reply to Resp. to Mot. to Take Judicial Notice, at 13–14.

As this Court has previously held under similar circumstances, “[w]here the charging

document closely tracks the statutory language of the relevant subsection, the fact that the

subsection is not also identified by its number does not create any reasonable doubt about which

subsection has been charged.” United States v. Robinson, 333 F. App’x 33, 36 (6th Cir. 2009);

see Hibbit, 514 F. App’x at 597–98 (“The indictment in this case conclusively shows that

Defendant was convicted under subsection A. The indictment states, Defendant ‘unlawfully did

knowingly cause serious physical harm to Richard Johnson.’ This language tracks the statutory

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No. 16-4081, United States v. Davy

language of Ohio Rev. Code § 2903.11(A)(1) . . . .”). Accordingly, because the indictment

language is nearly identical to the language in subsection A and entirely different from the

language in subsection B, there is no reasonable doubt that Davy was convicted under subsection

A of the statute.

Davy’s unpersuasive claim of factual discrepancies in these documents does not alter this

conclusion. Indeed, Davy does not actually present any evidence calling into question the fact

that he was convicted under subsection A of Ohio’s felonious assault statute but merely

speculates about the possibility of a discrepancy existing. Specifically, Davy speculates that

because of the reference to an amendment to count one in the indictment and the existence of

only one count in the indictment initially presented by the government while three counts are

mentioned in the journal entries, there is a possibility of a superseding indictment or some other

change to count one that creates reasonable doubt concerning under what subsection he was

indicted. However, the government, which only provided the first page of the indictment in its

motion, clarified in its reply the existence of three counts in the indictment and journal entries by

producing the final two pages of the indictment—detailing counts two and three. Further, the

journal entry explains that count one was amended “to delete [the] firearm spec[ification]” that

was included in the indictment, and there is no indication that it otherwise amended count one so

that it no longer applied to subsection A of the felonious assault statute. CA6 R. 36, Reply to

Resp. to Mot. to Take Judicial Notice at 10, 13. Therefore, we take judicial notice of the fact that

Davy was convicted under subsection A of Ohio Rev. Code § 2903.11. As a result, Davy

qualified for a base offense level of 24 under USSG § 2K2.1(a)(2), and the district court’s failure

to employ the modified categorical approach before applying USSG § 2K2.1(a)(2) did not affect

his ultimate sentence and does not rise to the level of plain error.

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No. 16-4081, United States v. Davy

Davy next contends that the district court failed to provide an adequate explanation for its

denial of his variance request and did not properly discuss the sentencing factors in 18 U.S.C.

§ 3553(a), thus rendering his sentence procedurally unreasonable. However, while less than

ideal, the explanation evidenced in the record is more than sufficient to satisfy the standard of

review.

A district court commits procedural error when it “fail[s] to adequately explain the

chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). When explaining the sentence,

the district court must provide a statement of reasons sufficient “to satisfy the appellate court that

[it] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal

decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). “Although the

district court need not explicitly discuss each § 3553(a) factor, the statement of reasons must

demonstrate that the district court at least considered each factor when determining the

appropriate sentence.” United States v. Kamper, 748 F.3d 728, 739 (6th Cir. 2014).

In his sentencing memorandum and at the sentencing hearing, Davy requested a

downward variance due to his personal history and characteristics, namely: (1) his parents’ drug

addictions, (2) witnessing his father’s murder at age eight, (3) his mother’s incarceration at age

twelve, (4) obtaining his GED, (5) some recent work history as a forklift driver, and (6) his

generally good relationships with his wife and step-children and with his two children from

previous relationships. The district court expressly considered Davy’s argument, telling him that

his “history and characteristics . . . helps you a bit, it makes you somewhat less blameworthy that

you grew up in troubled circumstances and had difficulty as a child. Sounds like most of that

was caused by your mother and her drug use, but it probably makes you somewhat less

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No. 16-4081, United States v. Davy

blameworthy.” DE 38, Sentencing Tr., Page ID 238–39. The court also noted “you’ve had

some, you know, work record. You’ve got some -- got a girlfriend, you’ve got a couple children

[with whom it] appears that you’ve had a close relationship . . . .” Id. at 240. But the court

ultimately concluded, “it was more important [to Davy] to carry the guns than to have time with

[his] children” and in order “to reflect just punishment, afford adequate deterrence, protect the

public, and reflect the seriousness of the offense,” the court needed to impose a sentence greater

than Davy’s previous 92-month sentence from a prior felon in possession conviction. Id. at 240–

41.

Although its discussion fails to explicitly mention every particular aspect of Davy’s

personal history and character raised in his request—and mistakenly refers to Davy’s wife as his

girlfriend—the district court’s explanation for its sentence nevertheless demonstrates that it

considered Davy’s argument and rejected it in light of the 18 U.S.C. § 3553(a) factors. Certainly

the district court could have said more, but it is not required to “give the reasons for rejecting any

and all arguments by the parties for alternative sentences,” particularly when the imposed

sentence falls within the Guidelines range. Vonner, 516 F.3d at 387; see United States v.

Madden, 515 F.3d 601, 611 (6th Cir. 2008) (“Even where, as here, the defendant presents an

arguably nonfrivolous reason for imposing a sentence below the Guidelines range, the judge is

not always required to address the specific argument.”); see also Rita, 551 U.S. at 356

(“Sometimes a judicial opinion responds to every argument; sometimes it does not . . . . The law

leaves much, in this respect, to the judge’s own professional judgment.”). The district court

specifically referred to several aspects of Davy’s argument, including his mother’s drug use, his

job history, and his positive relationships with his children, and it provided a not insubstantial

three-page discussion for why it concluded that the § 3553(a) factors, particularly deterrence and

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No. 16-4081, United States v. Davy

the need to protect the public, supported a sentence in the upper range of the Guidelines despite

Davy’s mitigating personal characteristics and history. Therefore, the district court’s reasoning

considered both Davy’s argument and the § 3553(a) factors, and his sentence was not

procedurally unreasonable. See United States v. Simmons, 587 F.3d 348, 359 (6th Cir. 2009)

(noting two-and-a-half pages of analysis at sentencing “is terse, but certainly not per se

inadequate” and “surely does not overcome the deference we must accord lower courts”).

Moreover, regardless of whether the district court’s explanation here was technically

sufficient, any potential error was not “plain.” Indeed, in this Court’s prior decision in Vonner

we found a significantly shorter and vaguer sentencing explanation than the one at issue here to

be sufficient under the plain error standard. 516 F.3d at 386–89. Similarly to the present case,

Vonner had requested a downward variance due to: (1) his neglected and abusive childhood;

(2) his 14-month presentence confinement; (3) his assistance to the Government; and (4) the

circumstances surrounding his cocaine sales. Id. at 386. At sentencing, the district court stated

that it “‘appreciate[d] the apology [he] offered this morning,’ and it ‘encouraged’ him to

continue to cooperate with the government and to dedicate his prison time to learning ‘certain

life skills and lifestyles that will be of benefit to [him] when [his] period of incarceration is

over.’” Id. (alterations in original). The district court then explained that it had “considered the

nature and circumstances of the offense, the history and characteristics of the defendant, and the

advisory Guidelines range, as well as the other factors listed in 18 [U.S.C. §] 3553(a),” before

denying Vonner’s request for a downward variance. Id. This Court found that even this “brief

explanation” could not be shown to “plainly violate[]” the trial court’s “duty to ‘analyze[] the

relevant sentencing factors’ and [Vonner’s] arguments for leniency.” Id. at 387–88 (first

alteration in original). Accordingly, just as the district court’s reasoning in Vonner was sufficient

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to overcome the plain error standard, the more substantial and specific reasoning here is also

sufficient under that highly deferential standard.

Davy’s final argument on appeal is that the district court erred in applying a two-level

stolen firearm enhancement under USSG § 2K2.1(b)(4)(A), a finding which relied on two

uncontested statements in the PSR: (1) “The officers determined that the firearm was stolen”

and (2) “The firearm possessed by [Davy] was stolen.”2 DE 24, PSR, Page ID 118–19. Davy

contends that these two statements lacked the sufficient indicia of reliability required by Fifth

Amendment Due Process and prescribed by USSG § 6A1.3(a) for the district court to rely on

them in applying the enhancement. This argument is unavailing because Davy admitted that the

firearm found in his possession was stolen when he failed to object to that fact being in the PSR,

an admission which provides the sufficient indicia of reliability.

Under Federal Rule of Criminal Procedure 32, a district court “may accept any

undisputed portion of the presentence report as a finding of fact.” FED. R. CRIM. P. 32(i)(3)(A);

see also Vonner, 516 F.3d at 385 (recognizing that a defendant’s failure to object to the

presentence report constitutes an acceptance of all factual allegations contained within it); United

States v. Adkins, 429 F.3d 631, 632–33 (6th Cir. 2005) (same). Accordingly, when a defendant

fails to object to factual statements contained in a PSR, those statements are no longer mere

allegations but become admissions sufficient to support factual findings relevant to sentencing

without the need for any independent factual findings. See United States v. Treadway, 328 F.3d

878, 886 (6th Cir. 2003) (“We can find no reason to require a district court to make independent

2
In addition to the PSR statements, during the sentencing hearing, the government twice referred to the firearm
being “stolen out of Maple Heights.” DE 38, Sentencing Tr., Page ID 226–27. These statements were made after
the district judge found that “the firearm [Davy] possessed had been stolen” but before the sentence was handed
down. Id. at 224. No objection was made to these statements.

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No. 16-4081, United States v. Davy

findings outside the PSR when the facts are undisputed.”); see also United States v. Kennedy,

595 F. App’x 584, 587–88 (6th Cir. 2015) (“When the facts in a PSR are undisputed, we

repeatedly have held that the district court may rely on those undisputed facts and does not need

to find those facts independently.”).

It is true that Fifth Amendment Due Process requires at least “some minimal indicium of

reliability beyond mere allegation” to support factual findings relevant to sentencing. United

States v. Silverman, 976 F.2d 1502, 1504 (6th Cir. 1992) (quoting United States v. Baylin,

696 F.2d 1030, 1040 (3d Cir. 1982). Likewise, the sentencing guidelines provide that relevant

information in a sentencing determination must have “sufficient indicia of reliability to support

its probable accuracy.” U.S. SENTENCING GUIDELINES MANUAL § 6A1.3(a) (U.S. SENTENCING

COMM’N 2016). However, a defendant’s admission of a fact satisfies the relatively low minimal-

indicia-of-reliability standard for that fact. See United States v. Stafford, 258 F.3d 465, 476 (6th

Cir. 2001) (“Defendant’s factual admissions in this case obviate any possible concerns about the

proper standard of proof.”); see also United States v. Marshall, No. 92-3440, 1993 WL 241827,

at *2 (6th Cir. 1993) (“[T]he evidence regarding Marshall’s possession of a firearm during the

commission of a drug offense was sufficiently reliable to provide Marshall due process at

sentencing. The United States and Marshall had agreed in the plea agreement to the

enhancement for possession of the firearm; therefore, the reliability of the evidence concerning

the firearm was not in dispute prior to sentencing.”). Further, the language of USSG § 6A1.3(a)

specifically limits its requirement for “sufficient indicia of reliability” to situations where the

“factor important to the sentencing determination is reasonably in dispute,” and an admitted fact

by definition cannot be reasonably in dispute.

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No. 16-4081, United States v. Davy

Here, Davy not only failed to object to any factual allegations in the PSR at the

sentencing hearing, but his own sentencing memorandum included the calculation of a two-level

enhancement for a stolen firearm. As a result, Davy admitted all of the factual allegations

contained in the PSR, including the statements that the firearm in his possession was stolen.3 See

Vonner, 516 F.3d at 385; Adkins, 429 F.3d at 632–33; see also Taylor, 418 F. App’x at 402.

Therefore, because Davy admitted the firearm in his possession was stolen, that fact is not in

dispute and the district court did not commit plain error in relying on the statements in the PSR

to apply the sentencing enhancement.

IV.

For the reasons stated above, we grant the government’s motion to take judicial notice

and affirm the sentence imposed by the district court.

3
Even now on appeal, Davy does not dispute—let alone present evidence against—the finding that the firearm in his
possession was stolen. See United States v. Geerken, 506 F.3d 461, 467 (6th Cir. 2007) (“When a defendant fails to
produce any evidence to contradict the facts set forth in the PSR, a district court is entitled to rely on those facts
when sentencing the defendant.”).