UNITED STATES COURT OF APPEALS February 25, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-5018

COTI D’SHAYNE DAVIS,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:22-CR-00004-JFH-1) _________________________________ Amy W. Senia, Assistant Federal Public Defender, (and Virginia L. Grady, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant. Valeria Gabrielle Luster, Assistant United States Attorney, (and Clinton J. Johnson, United States Attorney, Northern District of Oklahoma, with her on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee. _________________________________ Before MATHESON, KELLY, and MORITZ, Circuit Judges. _________________________________ KELLY, Circuit Judge. _________________________________

Defendant-Appellant, Coti D’Shayne Davis, pled guilty to failing to register as a sex offender, 18 U.S.C. § 2250(a), and was sentenced to an above-guidelines sentence of 87 months’ imprisonment followed by 10 years’ supervised release. I R. 23–25. In a Appellate Case: 24-5018 Document: 51-1 Date Filed: 02/25/2025 Page: 2

prior appeal, this court granted a joint motion to remand to the district court for resentencing to (1) allow Mr. Davis to allocute prior to imposing an upward variance and (2) to make specific findings concerning a special condition of supervised release involving possessing or viewing certain sexually explicit materials. Id. at 112–13; United States v. Davis, No. 23-5012, ECF No. 45.

On remand, the district court allowed Mr. Davis to allocute and struck the special condition. III R. 14, 28. The court again varied upward and imposed a sentence of 87 months’ imprisonment and 10 years’ supervised release. I R. 146–47. Mr. Davis now appeals, challenging a two-point addition to his criminal history score pursuant to U.S.S.G. § 4A1.1(b) based on a misdemeanor conviction for consumption of liquor by a minor. Aplt. Br. at 4. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we remand for the district court to vacate Mr. Davis’s sentence and resentence him without the two-point addition.

Background

In 2011, Mr. Davis was convicted of aggravated sexual abuse in Illinois and was required to register as a sex offender. II R. 86. In 2012, when Mr. Davis was 20 years old, he was convicted in Illinois of illegal consumption of liquor by a person under 21 after police arrested him at an underage drinking party at a private residence. Id. at 76– 82. As a result of the underage drinking conviction, Mr. Davis was sentenced to 60 days in county jail, 2 years’ conditional discharge, and a $100 fine. Id. at 82.

In 2013, Mr. Davis moved to Oklahoma and the United States Marshals could not verify that he complied with the sex offender registration requirements. Id. at 4. In 2021,

2 Appellate Case: 24-5018 Document: 51-1 Date Filed: 02/25/2025 Page: 3

the Oklahoma Department of Human Services began investigating allegations that Mr. Davis was sexually abusing his wife’s eleven-year-old sister while in failure-to- register status. Id. at 86–87.

The Presentence Investigation Report (PSR) assigned Mr. Davis a criminal hist