United States v. Ricky Davis ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 9 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10547
Plaintiff-Appellee, D.C. No.
1:12-cr-00056-AWI-BAM-1
v.
RICKY DAVIS, AKA Rick Dog, AKA Rick MEMORANDUM*
Loks,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted April 18, 2019
San Francisco, California
Before: HAWKINS and M. SMITH, Circuit Judges, and LYNN,** District Judge.
Ricky Davis appeals his sentence for sexually exploiting a minor in violation
of 18 U.S.C. § 2251(a). Davis argues that the district court’s imposition of a prison
term of 300 months and Special Condition 8 were procedurally and substantively
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
erroneous, and that the restriction on adult pornography in Special Condition 8 is
unconstitutional.
The district court did not abuse its discretion in sentencing Davis to 300
months of incarceration. See United States v. Carty, 520 F.3d 984, 992–93 (9th
Cir. 2008) (en banc). The record confirms that the district court evaluated the
relevant 18 U.S.C. § 3553(a) factors, including the nature and circumstances of the
offense and the need to avoid unwarranted sentencing disparities. After
completing this analysis, the district court imposed a sentence that was below the
Guidelines range of 360 months. We conclude that there was no procedural error
and that the sentence of 300 months is substantively reasonable.
However, Davis was not given appropriate notice of the portion of Special
Condition 8, which limited Davis’s access to adult pornography, prior to its
imposition. See United States v. Wise, 391 F.3d 1027, 1033 (9th Cir. 2004). We
thus conclude that the district court committed procedural error, and we vacate
Special Condition 8 and remand for its reconsideration. Accordingly, we need not
address the substantive reasonableness or constitutionality of this condition. See
United States v. Rudd, 662 F.3d 1257, 1263–64 (9th Cir. 2011). On remand,
however, Davis should have the opportunity to argue why Special Condition 8 is
improper, including whether it is overbroad and infringes on his liberty more than
is reasonably necessary to accomplish the relevant goals of § 3553(a).
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AFFIRMED in part; VACATED and REMANDED in part.
3