[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11185

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

HASAN MALIK DAVIS, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:22-cr-20355-CMA-1

____________________

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2 Opinion of the Court 23-11185

Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

Hasan Davis appeals his sentence of 180 months’ 

imprisonment for transporting child pornography in interstate 

commerce and possessing child pornography in the special 

maritime jurisdiction of the United States. On appeal, he argues 

that the district court erred in applying statutory sentencing 

enhancements based on Davis having Ohio state convictions

“relating to” child pornography. After careful review, we affirm.

I. Background

Davis was indicted for transportation of child pornography

in interstate commerce, in violation of 18 U.S.C. §§ 2256(2), 

2252(a)(1) and (b)(1) (Count 1); and possession of child 

pornography in the special maritime jurisdiction of the United 

States, in violation of 18 U.S.C. §§ 2256(2), 2252(a)(4)(B) and (b)(2) 

(Count 2). He pleaded guilty to Counts 1 and 2 without a written 

plea agreement. Davis also admitted to being previously convicted 

of violating two Ohio statutes: (1) pandering sexually oriented 

material involving a minor, in violation of Ohio Rev. Code 

§ 2907.322(A)(5), and (2) illegal use of a minor in nudity- oriented 

material or performance, in violation of Ohio Rev. Code Ann. 

§ 2907.323(A)(3). 

The presentence investigation report (“PSI”) described the 

following offense conduct. In July 2022, Davis entered the United 

States aboard a cruise ship arriving from the Bahamas. Customs 

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23-11185 Opinion of the Court 3 

and Border Protection officers selected him for secondary 

inspection and searched his property, including his cellphone. 

While searching the cellphone, officers found files containing child 

pornography. Davis was arrested. 

A subsequent forensic examination of Davis’s phone showed 

over 100 images and at least 5 videos of minors engaged in sexually 

explicit conduct. Based on a video and image calculation pursuant 

to U.S.S.G. § 2G2.2, n.6(B)(ii), which defines a video as 75 images, 

Davis was responsible for a total of 475 images. 

The PSI calculated a total offense level of 30 and a criminal 

history category of II, which resulted in a guideline imprisonment 

range of 108 to 135 months. The statutory imprisonment term for 

Count 1 was 15 to 40 years (or 180 to 480 months) pursuant to 18 

U.S.C. § 2252(b)(1).1 The statutory imprisonment term for Count 

1 18 U.S.C. § 2252(a)(1) applies to any person who: 

(1) knowingly transports or ships using any means or facility of 

interstate or foreign commerce or in or affecting interstate or 

foreign commerce by any means including by computer or 

mails, any visual depiction, if-- 

(A) the producing of such visual depiction involves the 

use of a minor engaging in sexually explicit conduct; 

and 

(B) such visual depiction is of such conduct[.]

And § 2252(b)(1) provides that anyone who violates the above will be 

“imprisoned for not less than 15 years nor more than 40 years” 

if such person has a prior conviction . . . under the laws of any 

State relating to aggravated sexual abuse, sexual abuse, or 

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4 Opinion of the Court 23-11185

2 was 10 to 20 years (or 120 to 240 months) pursuant to 18 U.S.C. 

§ 2252(b)(2).2 The PSI explained that because the statutorily 

authorized minimum sentence imposed under Count 1 (180 

abusive sexual conduct involving a minor or ward, or the 

production, possession, receipt, mailing, sale, distribution, 

shipment, or transportation of child pornography, or sex 

trafficking of children[.] 

18 U.S.C. § 2252(b)(1). 

2 18 U.S.C. § 2252(a)(4) applies to any person who:

(A) in the special maritime and territorial jurisdiction of the 

United States . . . knowingly possesses, or knowingly accesses 

with intent to view, 1 or more books, magazines, periodicals, 

films, video tapes, or other matter which contain any visual 

depiction; or

(B) knowingly possesses, or knowingly accesses with intent to 

view, 1 or more books, magazines, periodicals, films, video 

tapes, or other matter which contain any visual depiction 

that . . . has been shipped or transported using any means or 

facility of interstate or foreign commerce . . . , if-- 

(i) the producing of such visual depiction involves the 

use of a minor engaging in sexually explicit conduct; 

and 

(ii) such visual depiction is of such conduct[.]

And § 2252(b)(2) provides that anyone who violates the above will be 

“imprisoned for not less than 10 years nor more than 20 years” if they have a 

prior conviction “under the laws of any State relating to aggravated sexual 

abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or 

the production, possession, receipt, mailing, sale, distribution, shipment, or 

transportation of child pornography[.]”

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23-11185 Opinion of the Court 5

months) was greater than the maximum of the applicable guideline 

range (135 months), the guideline term became 180 months. 

Davis objected to the PSI, arguing that sentencing 

enhancements based on his Ohio convictions should not have been

applied because those convictions did not relate to the sexual abuse 

of children or child pornography.3 He argued that, to determine 

whether the Ohio convictions “qualif[ied] as a prior conviction for 

the purposes of 18 USC 2252(b)(1),” they needed to be properly 

“examined under the categorical approach[.]” 

Davis also requested a downward variance or departure. He 

said that his circumstances and characteristics showed that his wife 

had no concerns about his interactions with children. He also 

pointed to a learning disability, poor mental processing, depression, 

and other mental issues. An attached psychological evaluation and 

risk assessment from a clinical and forensic psychologist stated that 

“insufficient evidence exist[ed] to unequivocally determine 

[Davis’s] sexual interest in minor children at th[e] time,” and that 

“Davis [did] not currently meet any criteria for any paraphilic 

(sexual) disorder.” The assessment concluded that Davis appeared 

to present a low risk of a “‘hands-on’ offense with an underage 

child.” 

The government opposed the motion, arguing in part that 

the Ohio convictions triggered the statutory sentencing

3 He also objected to the inclusion of the Ohio offenses, arguing that “they 

ha[d] not been sufficiently described, documented[,] or proven.” 

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6 Opinion of the Court 23-11185

enhancements under the categorical approach. The government 

further asserted that the nature and circumstances of the offense, 

combined with Davis’s history and characteristics, supported a 

lengthy term of imprisonment, as child pornography was harmful

and Davis had recidivated. The government added that there was 

a need to protect the public, promote respect for the law, and “deter 

[Davis] from engaging in the same conduct in the future.” 

During Davis’s sentencing hearing, the court heard 

arguments from both sides about how to apply the categorical 

approach.4 The district court agreed with the government, 

concluding that Davis’s convictions under the two Ohio statutes 

“did in fact relate to . . . child pornography” and that “the 

enhancement properly applie[d].” The court adopted the PSI, 

sentencing Davis to 180 months’ imprisonment as to Counts 1 and 

2, to be served concurrently, followed by 10 years of supervised 

release. The court added that even “if [it] was incorrect” in 

applying the sentencing enhancement, it would have still imposed 

the same sentence:

4 The government argued that the categorical approach interprets the 

language of § 2252(b)(1) broadly, requiring that the underlying state offense 

“relate[] to” a child pornography offense in order to apply the mandatory 

minimum of 15 years (or 180 months). The government further argued that 

the Ohio statutes related to child pornography. Meanwhile, Davis argued for 

a stricter interpretation of the categorical approach, asserting that the 15-year 

mandatory minimum should not apply because the least culpable conduct that 

would violate the Ohio statute of conviction would not satisfy the federal 

definition of child pornography. 

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[S]hould [defense counsel] be correct in how I was 

required under the categorical approach to consider 

the Defendant’s two prior convictions, I would, 

nevertheless, impose the sentence I’m going to 

announce now. In other words, if I was incorrect in 

agreeing with the Government, the sentence I 

announce now does not depend on that. It is guided 

by the 3553 factors, it is guided by the advisory 

guidelines. It is guided by the nature and 

circumstances of this defendant’s offense conduct, by 

his history and characteristics, by the serious nature 

of the crime that brings the Defendant before the 

[c]ourt and by the need to provide deterrence and 

promote respect for the law and [protect] the public. 

Davis timely appealed. 

II. Discussion 

On appeal, Davis argues that the district court erred in 

applying an enhanced sentence based on his prior Ohio state 

convictions because the Ohio convictions do not relate to the 

sexual abuse of a minor or child pornography. But Davis failed to 

address the district court’s independent, alternative holding—that 

even if it incorrectly applied an enhanced sentence based on the

prior Ohio convictions, it would have still imposed the same 

sentence under the § 3553(a) factors. A district court’s judgment 

must be affirmed if an appellant fails to challenge each of the 

court’s independent, alternative grounds for its ruling. Sapuppo v. 

Allstate Floridian Ins., 739 F.3d 678, 680–81 (11th Cir. 2014); see 

United States v. Maher, 955 F.3d 880, 885 (11th Cir. 2020) (affirming 

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8 Opinion of the Court 23-11185

criminal conviction because appellant failed to address each 

independent ground for judgment against him). Because Davis did 

not address the district court’s alternative holding, we affirm the 

judgment. Id.

Further, in any event, any potential error by the district 

court in applying an enhanced sentence based on the prior Ohio 

convictions was harmless. The district court can render a proposed 

guidelines error harmless by stating that it would have imposed the 

same sentence even if the defendant prevailed on that issue. United 

States v. Keene, 470 F.3d 1347, 1349–50 (11th Cir. 2006). We will not 

“set aside [a] reasonable sentence and send the case back to the 

district court [where] it has already [said] that it would impose 

exactly the same sentence, a sentence we would be compelled to 

affirm.” Id. at 1350. That said, “[the] sentence imposed through 

the alternative or fallback reasoning of § 3553(a) must be 

reasonable.” Id. at 1349. The appellant has the burden of showing 

that his sentence would be unreasonable under this alternative 

range. Id. at 1350.

We review the reasonableness of a sentence under the

deferential abuse-of-discretion standard. United States v. Irey, 612

F.3d 1160, 1180 (11th Cir. 2010) (en banc). “A district court abuses 

its discretion when it (1) fails to afford consideration to relevant 

factors that were due significant weight, (2) gives significant weight 

to an improper or irrelevant factor, or (3) commits a clear error of 

judgment in considering the proper factors.” Id. at 1189

(quotations omitted). “[T]he burden is on the defendant to prove 

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that his sentence is unreasonable in light of the record and 

§ 3553(a).” Keene, 470 F.3d at 1350. 

We examine whether a sentence is substantively reasonable 

by “consider[ing] the totality of the facts and circumstances.” Irey, 

612 F.3d at 1189. The § 3553(a) factors due consideration under 

statute in evaluating the appropriateness of a sentence include “the 

nature and circumstances of the offense,” “the history and 

characteristics of the defendant,” the need for a sentence to reflect 

the offense’s seriousness, “promote respect for the law,” “provide 

just punishment” and adequate deterrence, and “protect the 

public,” the guideline range, and “the need to avoid unwarranted 

sentencing disparities” among similar offenders. 18 U.S.C. 

§ 3553(a). “[A] district court need not account for every § 3553(a) 

factor, nor must it discuss each factor and the role that it played in 

sentencing.” United Statesv. McBride, 511 F.3d 1293, 1297 (11th Cir. 

2007). And the weight given to any specific § 3553(a) factor is 

“committed to the sound discretion of the district court.” United 

States v. Rosales-Bruno, 789 F.3d 1249, 1254 (2015). 

As to the characteristics of the defendant, we have explained 

that this factor is intended to “distinguish[] among defendants who 

commit a particular offense or type of offense.” Irey, 612 F.3d at

1202. District courts may consider a wide range of conduct as it 

relates to this factor. See 18 U.S.C. § 3661 (“No limitation shall be 

placed on the information concerning the background, character, 

and conduct of a person convicted of an offense which a court of 

the United States may receive and consider for the purpose of 

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imposing an appropriate sentence.”). For example, the district 

court may consider that the defendant “failed to accept 

responsibility” for his actions, “failed to show any remorse,” and 

“would likely be a recidivist if released[.]” United States v. King, 751 

F.3d 1268, 1281 (11th Cir. 2014). 

The sentencing court also “has wide discretion to decide 

whether the [§] 3553(a) factors . . . justify a variance.” United States 

v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010), abrogated on other 

grounds by Van Buren v. United States, 593 U.S. 374 (2021). The court 

need not discuss each factor in its justification. Gallv. United States, 

552 U.S. 38, 50 (2007). Even if an upward variance is imposed, a 

sentence that is well below the statutory maximum for the offense 

is more likely to be reasonable. United States v. Dougherty, 754 F.3d 

1353, 1364 (11th Cir. 2014). The court “can rely on factors in 

imposing a variance that it had already considered imposing an 

enhancement.” Rodriguez, 628 F.3d at 1264.

During sentencing, the district court said that the disputed 

guidelines issue did not affect its ultimate sentence, explaining that 

even if it incorrectly applied the categorical approach, its ultimate 

sentence was guided by the § 3553(a) factors and would have been 

the same regardless. Thus, for purposes of this opinion, we will 

assume there was a guidelines error and “then ask whether the final 

sentence . . . would still be reasonable” under the § 3553(a) factors 

considering the alternative guideline range, which would be 108 to 

135 months. Keene, 470 F.3d at 1349.

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Davis failed to make any argument on appeal to meet his 

burden of showing that his 180-month sentence would be 

unreasonable under the guideline range of 108 to 135 months. And 

considering the district court’s application of the § 3553(a) factors, 

we conclude that Davis’s 180-month sentence would still be 

substantively reasonable. Davis’s sentence is well below the 

statutory maximum for both Counts 1 and 2, which is an indicator 

of reasonableness. Dougherty, 754 F.3d at 1364. And the district 

court reached this sentence after considering the parties’ 

arguments, “the nature and circumstances of [Davis]’s offense 

conduct,” Davis’s “history and characteristics,” “the serious nature 

of the crime,” and “the need to provide deterrence and promote 

respect for the law and [protect] the public.” See Keene, 470 F.3d at 

1349–50; 18 U.S.C. § 3553(a) (listing these factors). Given the 

seriousness of the offense and the risk of reoffending, King, 751 F.3d 

at 1281, it was reasonable for the district court to determine that a 

longer sentence was necessary, and the district court adequately 

justified the upward variance. For this additional reason, we 

cannot say that the district court abused its discretion in deciding 

Davis’s sentence. 

AFFIRMED. 

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