kevin davis like to reserve two and a half minutes for rebuttal place well the issue in this case is whether or not the sentence that mr davis received was procedurally reasonable and i would submit that it was not for two reasons first he had no qualifying infant offenses to enhance the mandatory minimum the district court found that one of his offenses did qualify and second i don't believe that the pattern of activity enhancement was established by a preponderance of evidence so for those two reasons the sentence was not procedurally reasonable in examining the potential and hansing convictions to increase the mandatory minimum the district court looked at two prior offenses the first was a sexual battery conviction from an ohio court district court properly held with regard to that conviction that the age of the victim the or that the fact that the victim was not a minor had not been established in any of the court records and that therefore the offense could not qualify as a pr offense this was a finding that the government did not appeal the government did argue that it was not necessary under case law from other circuits for that offense to involve a minor in order for it to qualify as a predicate offense i think this court had previously held that that was not the case sort of implicitly in united states versus gardner but more recently in united states versus mateen this court explicitly held that the victim does have to be a minor in order for the offense to qualify as an hansing offense so the district court got that one right and held that it was not a qualifying offe the other offense the court considered however was an attempt to hurt and ten excuse me attempted pandering obscenity and holding a minor also from ohio and this case the district court held did qualify as a predicate offense but i think that was a mistake a statute that mr davis was convicted on their prohibited quote obscenity involving a minor unquote and the issue with regard to this conviction was whether that conduct necessarily constituted child pornography as defined by the federal statute which it had to in order for it to qualify as a  the court in comparing the elements of those two statutes under the categorical approach determined that the ohio statute was overbroad because it was possible to for there to be obscenity involving a minor that didn't involve child pornography the district court then took a modified categorical approach and looked at additional documents to determine in what manner mr davis had committed the offense that approach after the sentencing was determined to be improper according to de conferences united states which held that the modified categorical approach is only appropriate where the statute issue is divisible into predicate and non predicate offenses the ohio statute you have pandering statute is divisible into different subsections but each subsection only prohibits obscenity involving a minor so that each subsection is broader than the federal definition of child pornography and therefore using a modified categorical approach doesn't give the court any more information as to whether the actual conduct involved child pornography you said it violated i mean it sounds like it was appropriate to use the modified categorical approach here because the statute was divisible right even though you say that it doesn't help but notice this was right there was in your honor in terms of  element until your client that all that each of the series of activities prohibited all in total exactly the same element they there are different ways to violate different ways too illegally use obscenity involving a minor it can be through advertising publishing there are did but they all involve obscenity involving a minor there's nothing more specific in terms of the content of the material and because obscenity involving a minor is broader than child pornography it doesn't matter foreign elements based comparison which subsection was violated and therefore de comp says the modified categorical approach is not appropriate so neither of them qualify neither of his prior offenses qualified as a predicate offense to enhance the mandatory minimum in certain circumstances i think each each each portion of the guideline analysis has its own standards now i'm saying that you can look at the facts of a prior offense when you're when you're when you're applying the guidelines as opposed to trying to figure out if it's a qualifying offense if the facts are not contested yes using that approach the district court looked at well there were two documents presented by the government for the court's review the first was the sentencing journal entry from the state trial court and th forth the ages of the victims involved in the offense which satisfied one prong of the analysis but that entry did not describe the conduct depicted in the images and so there still was no evidence that the conduct depicted included child pornography now the district court from reading the transcript the district court appears to have determined that the conduct was sufficiently established by that state court journal entry because he talks about the fact that the mr davis was found to be a sexually oriented offender  sexual predator based on ohio standards at that time under the old meghan's law but there was nothing in the sentencing journal entry that describes the images themselves weak even if he were under properly under the modified categorical approach he couldn't exactly the case it's pretty clear even if you're under the modified applied you don't get to delve into the fact you look at it category wrecked it's an element so i'm just a little struggling with your definition of the explanation of why it's not divisible you just do that quickly one more time so you saying it's not divisible are you saying  the divisibility doesn't matter because when you divide it you don't find a crime that potentially fit i'm saying under de comps definition of divisible it has to be divisible into predicate and not predicate offenses and because this specific pandering offense is not divisible into predicate and nonprofit offenses it's not divisible for the modified categorical approach purpose technically if you did but even if you are a second argument is even if you did undertake a modified categorical approach the judge did it incorrectly by moving the beloved categories and seeking factual one else which is not allowed under the can't be correct but ok so how about the second the pattern of activity enhancement the standard i think this is what you were getting out early the standard is different when we're looking at the pattern of activity and hance meant but what the court relied on here was a written admission from mr davis that he had sexually abused his stepson and this goes back to the ohio sexual battery case now what the court said on the record is the mr davis has admitted that he abused his forty five year old stepson on ten different occasions and that's not actually what mr davis admitted to he did admit to abusing his stepson but once again and this was the problem and looking at this as a product offense his written statement did not make any mention of age so there was nothing in the record that determined the age of the child i mean it's under the ohio law it would still be sexual battery to abuse an adult stepchild and so what the court relied on was the statement that contained no no definition of the child if you are you kind of importing and they can analysis into this pattern of activity guideline enhancement you know i do i think i think it's clear that that's that's not the the proper analysis i it is it is broader there is more consideration but we what we have to do is look and see whether there was any basis for the sentencing judge to conclude that that abuse concerned a minor right yes ok so what about the earlier discussions that affected that pertain to the other issue there was sort of an offer of a birth certificate that the judge see that the judge declined to take judicial notice of the child's age finding that that would not be appropriate so there was discussion there was argument about the child's age but there was no evidence submitted in one second the judge for purposes of this of scoring this couldn't the prosecutor say judge here's the worst difficult judge even even for this purpose there must be there's a preponderance of evidence standard and there must be reliable indicia what could be more reliable he's identified a particular child in in all of this and the child was his age is probably the most reliable thing out there he either was or was not a minor but but there is no evidence in the record of the child you know well that's what i'm saying so the prosecutors certainly could have said he hears the birth certificate or a mother could have said it or it could be in a write up someplace and then you could show that know what appears to be reliable isn't but are you saying the ages and none of these things i'm saying that the government offered the birth certificate the judge refused it so that's not in the record but the defendant's written which is what we're talking about his sworn statement from one thousand nine hundred nine sexual battery he says my stepson and he does refer to the child by name but he never says the age of nap and because of the remedy would be to send it back and they'll they'll show the birth certificate well if the judge chooses to accept it at that time  that is a part of the record and the judge could consider as part of the preponderance of the evidence what the judge didn't consider he relied solely on the defendant statement well you don't know you don't know that he said well that's what it subtly said the defendant admitted it he wasn't aware did to he wasn't aware that somebody was challenging the child's age i mean they were challenging the age for purposes of the a a did anybody challenge the age for purposes of the enhancement i don't think the challenge to the age was necessarily made for a specific reason the argument was that there was no evidence of the child's age in the record it wasn't broken down that specifically i don't think in too well maybe there's evidence for this purpose but not for this purpose it was a little more general them out but you would agree that i mean there's a legal obstacles when it comes to the a c c basically it doesn't matter how old the child was from a legal standpoint right but here it does because the judge is allowed to consider all of this other information this standard is is less stringent with with this and just to clarify it wasn't actually the c c a that was at issue here was the the enhanced the problem is that the judge did not refer to a specific item in the record but he was factually correct right yes although the i think part part of the issue here is that the way that the pattern of activity and he has met was set forth in the pre sentence report it appeared to be it appeared the way the report was written that two separate offenses were required or you were not even convictions but two separate cases and so the probation officer kept referring to the sexual battery case plus another case first it was the tennessee case where there was no conviction there was an objection on the first p s r and then that was amended to try and include the pandering case and so it always seemed as if you know that case was not sufficient in of today and he did study his lesson it's in a previous statement i do have remorse for the boys because i have been a victim of abuse myself well it's not clear what voice  referring to talking about an enhancement or a pattern of activity is that not enough i don't think the defendant statement that he has sympathy for the boys would be sufficient to the age of the victim of this particular offense at any time below in the district court not that i'm aware of other than with regard to the evidence for purposes of the predicate offense analysis thank you the court my name is dan radke i represent the government in this appeal the pattern of activity enhancement you've all kind of gone through everything i wanted to mention except there are a couple things in the judgment entry and i think also show that there was a minor mr davis talks about at the end of his son statement talks about custody of the of the child and that he knows he'll never have custody of the child but he hopes that his wife or ex wife can get custody of the child back which would imply that the child victim was a minor also talked about babysitting the child in the statement on numerous occasions which also i think under a preponderance of the go to camp it punishes there's more than one way to commit this crime which i think is for our argument the key which is the way if you look at the statute which is the way that the statute identifies that would be pornography judges and you were looking at things that were too broad and then if part of it would violate it then and then you were looking at the facts but that's not what we meant you can't do that anymore you have to look at the ways the crime could be committed in the statute and then focus on the one that i mean honestly i don't see how you can win with that  what i think of march of two thousand and thirteen just can't can't came out i think a little bit after that but you know it is the supreme court and it is oh i think most of us would have made the same state in two we had that case with that point i think most of the courts most of the district courts were looking it at the at the judgment entries or whatever the tailor shop or documents were for those for those materials i think it's perfectly understandable it's just so i guess when we get into whether that's a plan eric is it wasn't wasn't raised on there by that you could look at the judgment entry if you considered it a divisible statute and you undertook the modified categorical approach but even if you do that he can't look he cannot draw out of these underlying documents all he can do is look at the categories and then don't you have the problem that the federal and the state statutes don't match because in one you've got from being a predicate right it includes nudity and it includes where the federal child pornography is really more excessively sexually explicit conduct i think what the judge really looked at but again he looked at the sexual predator determination and found that he was you know that mr davis had been convicted of a sexually oriented offense and there was likely to be convicted of another one in the future to reach that determination but then under just the camp  it's a different ballgame now what the judge is looking at back when when he was sentencing mr davis so do you have any other argument in favor only as to the sexual battery and that's really it's all going to be controlled by was last night it was still pending it hasn't been it hasn't been an opposition ordered yet by this court so we're still in the either the early consider of my consideration stages for that review is granted then the obviously the government would would argue that the sexual battery conviction would qualify because the phrase involving a minor would only modify the third twenty seven for the advisory guideline so the sexual battery part of our argument is is completely dependent on what this court does with mateen if it denies any bank review that obviously that argument would be foreclosed if it grants and bank review we would ask that the court would go along with the fourth fifth and seventh circuits which found that that involving a minor only modifies the third category ok any for the questions thank you  works getting back to the divisible vs non divisible argument and where you know how to determine that i like to read a quote from de camp that i think may help clarify that a little bit the court said the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute it retains the categorical approach is central feature a focus on the elements rather than the facts of a crime and it preserves the categorical approach is basic method comparing those elements with the generic offenses all the modified approach adds is a mechanism for making that comparison when a statute lists multiple alternative elements and so effectively creates several different crimes then the important part here i think it says if at least one but not all of those crimes matches the generic version a court needs a way to find out which the defendant was convicted off so in the case we have here where not of the subsections match essentially the generic version the child pornography definition there is no reason to find out which specific subsection the defendant was convicted of because it doesn't change the analysis at all each subsection is overbroad and isn't in and of itself going to provide a sufficient basis for finding trying to get there you could get there either way you could begin at the beginning and so i do think the this is the end result because none of them match or you could do that with what that says do the modified categorical approach you don't get to the documents under the modified categorical approach you do you just don't get to look at the facts of what you yes we're all struggling wit because you take it day on into that modified category and then do the elemental comparison and and in this case the court was not able to do would it do that were i mean i think i think this fails as a predicate offense either way but i really think that they that they come says you have to start by dividing it into predicate or not predicate offenses or seeing if you can divide it into predicate or not predicate offenses and if you can't then that's the end of the story and you don't go any further the further questions from assurance right thank you very much a case will be submitted it's my understanding that completes the cases