Sentencing; United States v. Angel; Grouping of defendant’s conduct under the Guidelines; USSG § 3D1.2; United States v. Bivens; Stinson v. United States; Undue-influence enhancement; § 2G1.3(b)(2)(B); United States v. Farmer (Unpub. 6th Cir.); United States v. Reid; United States v. Willoughby; Procedural reasonableness; Gall v. United States; Factual findings; United States v. Straughter; Whether the district court was free to change the sentence after it was orally pronounced in open court; Moot issue; Effect of a remand for resentencing; United States v. Garcia-Robles

Although the court held that the district court did not err by grouping defendant-Davis’s conduct into three groups instead of a single group under the Guidelines, it vacated his sentence where the district court failed to consider all the facts when enhancing his sentence under § 2G1.3(b)(2)(B) for “undue influence.” He was convicted of various crimes related to sex trafficking of a minor. He argued that his sentence was procedurally unreasonable because the district court improperly grouped his conduct into three groups under the Guidelines—one for each day of prostitution. This ruling increased his offense level by three levels. He claimed that because “his conduct involved a single scheme, with a single victim,” and occurred over a short period of time, it should have constituted a single group. The court affirmed the district court’s decision in this regard, holding that even though the case “involved ‘a single course of conduct with a single criminal objective’—selling sex with a minor[,] . . . each of the three counts of sex trafficking of a minor involved separate instances of harm. . . . Because each of the three counts of sex trafficking of a minor relates to a separate day and harm, the commentary to § 3D1.2 dictates that they should be grouped separately.” However, the court reversed the district court’s application of the two-level undue-influence enhancement. Under § 2G1.3, there is a rebuttable presumption that undue influence exists where a defendant “‘is at least 10 years older than the minor[.]’” The court concluded that the district court “relied almost exclusively on this rebuttable presumption” without considering other facts in the case, such as the victim’s testimony that she “previously engaged in prostitution,” and willingly took part in the offenses. The court vacated Davis’s sentence and remanded for the district court to reconsider the evidence, including the apparent discrepancies between the victim’s trial testimony and her victim-impact statement. Although the court was “inclined to agree with the Government that the court lacked the authority to change its mind and impose a different sentence once it had orally pronounced a sentence in open court[,]” the issue was moot because the sentence was vacated and the case remanded for resentencing.