United States of America v. Mackenzie Davis

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MACKENZIE DAVIS,
Defendant-Appellant.
No. 20-10084
D.C. No.
3:19-cr-08008-SMB-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Susan M. Brnovich, District Judge, Presiding
Submitted May 11, 2021**
Pasadena, California
Before: BYBEE and BRESS, Circuit Judges, and CARDONE,*** District Judge.
Mackenzie Davis appeals his criminal convictions for: (1) deprivation of
rights while acting under color of law in violation of 18 U.S.C. § 242; (2) abusive
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
FILED
MAY 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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sexual contact in Indian Country in violation of 18 U.S.C. §§ 1153 and 2244(b);
and (3) altering, concealing, or destroying evidence with the intent to obstruct a
federal investigation in violation of 18 U.S.C. § 1519. Davis also appeals his fifty-
one-month sentence on these counts. We have jurisdiction under 28 U.S.C.
§ 1291. We affirm.
1. Assuming the district court erred in admitting Shantel Kaye’s trial
testimony regarding Davis’s prior sexual assaults pursuant to Rule 413, “[r]eversal
is not required if there is a fair assurance of harmlessness or, stated otherwise,
unless it is more probable than not that the error did not materially affect the
verdict.” United States v. Lague, 971 F.3d 1032, 1041 (9th Cir. 2020) (internal
quotation marks and citations omitted). We have “found harmless error despite the
erroneous admission of evidence where the properly admitted evidence was highly
persuasive and overwhelmingly pointed to guilt.” Id. (internal quotation marks and
citation omitted). Setting aside Kaye’s testimony, the evidence of Davis’s guilt
included the victim’s firsthand account of Davis’s sexual assault, a high probability
that Davis’s DNA was on the victim’s bra, and the fact that Davis took a picture of
the victim’s bare breasts with his cell phone, then deleted it. Because the
government otherwise submitted highly persuasive and overwhelming evidence of
Davis’s guilt at trial, any error in the district court’s admission of Kaye’s Rule 413
testimony was harmless. See Lague, 971 F.3d at 1041.

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2. The evidence was sufficient to support Davis’s conviction for altering,
concealing, or destroying evidence in violation of 18 U.S.C. § 1519. We review de
novo the sufficiency of the evidence. United States v. Kaplan, 836 F.3d 1199,
1211 (9th Cir. 2016); In re Bammer, 131 F.3d 788, 791–92 (9th Cir. 1997). When
the government relies on a concealment theory of § 1519 liability, it must prove
actual concealment. See United States v. Katakis, 800 F.3d 1017, 1023, 1030 (9th
Cir. 2015). For actual concealment to exist, “there must be some likelihood that
the item will not be found in the course of a cursory examination (without using
forensic tools) of a defendant’s computer.” Id. at 1030. Stated differently,
“[a]ctual concealment must do more than merely inconvenience a reasonable
investigator—there must be some likelihood that the item will not be found.” Id.
Because the evidence here showed that an original photograph of the
victim’s exposed breasts had been deleted from Davis’s cell phone and could not
readily be recovered without the use of forensic tools, the evidence was sufficient
to support the jury’s verdict that Davis violated § 1519. See Katakis, 800 F.3d at
1030; see also United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en
banc) (holding that in reviewing the sufficiency of the evidence, we decide
“whether after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt” (internal quotation marks and citation omitted)).

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3. The district court did not abuse its discretion by increasing Davis’s
base offense level from twelve to sixteen based upon conduct described in 18
U.S.C. § 2242. See U.S.S.G. § 2A3.4(a)(2). In the sentencing context, “we review
the district court’s identification of the correct legal standard de novo and the
district court’s factual findings for clear error.” United States v. Gasca-Ruiz, 852
F.3d 1167, 1170 (9th Cir. 2017) (en banc). We review for abuse of discretion a
district court’s application of the Sentencing Guidelines to the facts of a given
case. Id. In relevant part, the Sentencing Guidelines define “conduct described in
18 U.S.C. § 2242” as “engaging in, or causing sexual contact with, or by another
person by threatening or placing the victim in fear (other than by threatening or
placing the victim in fear that any person will be subjected to death, serious bodily
injury, or kidnapping).” U.S.S.G. § 2A3.4(a)(2) cmt. n.3.
The district court’s findings that Davis’s non-sexual-assault behavior,
including confining the victim in the back of his police car, commenting to the
victim about the size of her breasts, and photographing the victim’s exposed
breasts, caused the victim to experience fear, are not clearly erroneous. Reversal
of Davis’s sentence on this basis is thus not warranted. See In re Bundy, 840 F.3d
1034, 1041 (9th Cir. 2016).
Nor did the district court err by applying the preponderance of the evidence
standard in lieu of the clear and convincing evidence standard at Davis’s

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sentencing hearing. We use a six-factor test to decide whether the clear and
convincing standard should be applied at sentencing, including whether: (1) the
enhanced sentence falls within the statutory maximum sentence for the crime
charged in the indictment; (2) the enhanced sentence negates the defendant’s
presumption of innocence or the prosecution’s burden of proof; (3) the facts
offered in support of the enhanced sentence create new offenses that require
separate punishment; (4) the enhanced sentence is grounded in the extent of a
conspiracy; (5) the offense level is increased by four or fewer levels; and (6) the
length of the enhanced sentence will more than double the sentence prescribed by
the initial Sentencing Guidelines range in cases where the defendant otherwise
would have received a relatively short sentence. See United States v. Valle, 940
F.3d 473, 479 (9th Cir. 2019) (citations omitted). Since none of these six factors
favor Davis, the district court properly applied the preponderance of the evidence
standard at his sentencing hearing. See United States v. Riley, 335 F.3d 919, 927
(9th Cir. 2003).
AFFIRMED.

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