United States v. Barry Davis

Case: 12-20302 Document: 00512229767 Page: 1 Date Filed: 05/03/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 3, 2013
No. 12-20302
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BARRY LERNARD DAVIS, also known as 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 JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Barry Lernard Davis appeals from the judgment entered following his
resentencing. He was convicted of sex trafficking of children, transportation of
a minor with intent to engage in criminal sexual activity, and coercion and
enticement to engage a person in prostitution or other criminal sexual activity.
We affirmed the conviction and vacated the sentence in part because the district
court erroneously imposed a two-level multiple count adjustment to Davis’s
offense level, pursuant to U.S.S.G. § 2G1.3(d)(1). We affirmed the imposition of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-20302 Document: 00512229767 Page: 2 Date Filed: 05/03/2013
No. 12-20302
a five-level adjustment pursuant to § 4B1.5(b)(1) because Davis engaged in a
pattern of activity involving prohibited sexual conduct with minors.
On appeal from his resentencing, Davis contends solely that the district
court erred by imposing the five-level adjustment for engaging in a pattern of
prohibited sexual behavior with a minor. He construes this court’s previous
opinion as allowing him to offer evidence to rebut the presumption of correctness
he alleges is given to presentence reports. Because we affirmed the five-level
adjustment in the previous appeal, Davis was barred from relitigating that issue
in the district court. See United States v. Lee, 358 F.3d 315, 320-21 (5th Cir.
2004); United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998) (Marmolejo
II).
AFFIRMED.
2