519 F.3d 940 (9th Cir. 2008), 06-30596, United States v. Davenport

Docket Nº:06-30596.
Citation:519 F.3d 940
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Winston DAVENPORT, Defendant-Appellant.
Case Date:March 20, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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519 F.3d 940 (9th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Winston DAVENPORT, Defendant-Appellant.

No. 06-30596.

United States Court of Appeals, Ninth Circuit.

March 20, 2008

Argued and Submitted Nov. 6, 2007.

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Darla J. Mondou, Marana, AZ, for the defendant-appellant.

Marcia Hurd and Eric B. Wolff, U.S. Attorney's Office, Billings, MT, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CR-06-00006-1-DWM.

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Before: William C. Canby, Jr., Susan P. Grabber, and Ronald M. Gould, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Dissent by Judge GRABER.

Winston Davenport appeals the district court's denial of Davenport's motion to withdraw his guilty plea and the sentence that the district court imposed on him for one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). After the district court denied Davenport's motion to withdraw his guilty plea, Davenport received a 78-month sentence of incarceration for each of the two counts, to be served concurrently, as well as concurrent life terms of supervised release for each count.

In this opinion we address whether Davenport's conviction for both 18 U.S.C. § 2252A(a)(2), or receipt of child pornography, and 18 U.S.C. § 2252A(a)(5)(B), or possession of child pornography, offends double jeopardy when the conduct underlying both offenses is the same.[1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we determine that Davenport's simultaneous conviction for both receipt and possession of child pornography violates the Fifth Amendment's prohibition on double jeopardy. We reverse and remand to the district court for further proceedings consistent with this opinion.

I

In September of 2005, the Helena, Montana office of the Department of Homeland Security, Immigration and Customs Enforcement ("ICE") learned that an IP address associated with Davenport had been used to access a file-sharing program and download images of child pornography from other computer users. The ICE investigated Davenport's involvement with child pornography, and forensic analysis of Davenport's computer revealed 496 images and 334 videos containing child pornography, child erotica, or other possible images of interest. Some of these materials depicted violence or involved children under the age of twelve.

Davenport was indicted by a grand jury on February 16, 2006 on one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2), one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and one count of forfeiture under 18 U.S.C. § 2253(a) which requires defendants convicted of child pornography offenses to relinquish all rights to the computer on which the pornography was found. Davenport entered into a plea agreement with the government on April 21, 2006, waiving his right to appeal issues regarding his conviction but not his sentence, in exchange for a promise that the government would recommend a sentence of either the mandatory statutory minimum or the bottom of the Guidelines range, whichever was higher. A change of plea hearing was held on April 24, 2006, at which Davenport stated under oath, among other things, that he was guilty of each of the elements of both receipt and possession of child pornography.

At a sentencing hearing held on October 25, 2006, Davenport received 78 months of incarceration for the receipt and possession counts, each, with the two sentences to be served concurrently, followed by two concurrent lifetime terms of supervised release. The judgment recording this conviction

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and sentence was entered on October 27, 2006. Davenport now argues, for the first time on appeal, that his sentence for both receipt and possession of child pornography is impermissible because the two convictions, based on the same conduct, are multiplicitous, in violation of the Fifth Amendment's Double Jeopardy Clause.

II

Although we normally review de novo claims of double jeopardy violations, United States v. Jose, 425 F.3d 1237, 1240 (9th Cir. 2005), we review issues, such as the present one, not properly raised before the district court for plain error. See Fed. R.Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 730-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Valenzuela, 495 F.3d 1127, 1130 (9th Cir. 2007). Under the plain error standard, we will affirm Davenport's sentence unless: (1) there has been an error in the proceedings below; (2) that error was plain; (3) it affected substantial rights; and (4) it seriously affected the fairness, integrity, or public reputation of judicial proceedings. Olano, 507 U.S. at 733, 113 S.Ct. 1770; Valenzuela, 495 F.3d at 1130.

III

The Fifth Amendment's prohibition on double jeopardy protects against being punished twice for a single criminal offense. U.S. Const. amend. V.; Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). When multiple sentences are imposed in the same trial, "the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Brown, 432 U.S. at 165, 97 S.Ct. 2221. When a defendant has violated two different criminal statutes, the double jeopardy prohibition is implicated when both statutes prohibit the same offense or when one offense is a lesser included offense of the other. Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996). To determine whether two statutory provisions prohibit the same offense, we must examine each provision to determine if it "requires proof of a[n additional] fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); United States v. Williams, 291 F.3d 1180, 1186-87 (9th Cir. 2002), overruled on other grounds by United States v. Gonzales, 506 F.3d 940 (9th Cir. 2007) (en banc). We also employ this analysis, commonly known as the Blockburger test, to determine whether one offense is a lesser included offense of another. Rutledge, 517 U.S. at 297, 116 S.Ct. 1241. If two different criminal statutory provisions indeed punish the same offense or one is a lesser included offense of the other, then conviction under both is presumed to violate congressional intent. See Missouri v. Hunter, 459 U.S. 359, 366-67, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

Davenport advances this basic proposition that we have adopted in other statutory contexts: It is impossible to 'receive' something without, at least at the very instant of 'receipt,' also 'possessing' it. As we have recognized elsewhere, "federal statutes criminalizing the receipt of contraband [generally] require a knowing acceptance or taking . . . possession of the prohibited item." United States v. Romm, 455 F.3d 990, 1001 (9th Cir. 2006) (internal quotation marks omitted); see also United States v. Mohrbacher, 182 F.3d 1041, 1048 (9th Cir. 1999) (looking to the relevant statute's plain language and adopting, for statutory interpretation purposes, the ordinary meaning of the word "receive," namely "to take . . . into one's possession").

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From this, Davenport urges us to conclude that the offenses described in 18 U.S.C. § 2252A(a)(2) also cover the offenses described in 18 U.S.C. § 2252A(a)(5)(B), so that possession is a lesser included offense of receipt. Davenport asserts that, while the government may have been within constitutional boundaries to include both offenses in the indictment, and could permissibly have continued to prosecute Davenport for both offenses through trial, see Ball, 470 U.S. at 865, 105 S.Ct. 1668, entering judgment against him on these counts was multiplicitous and therefore in violation of the Fifth Amendment's prohibition of double jeopardy. We agree.

We begin by comparing the text of each provision. See Williams, 291 F.3d at 1187 (citing Carter v. United States, 530 U.S. 255, 260-61, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000)) ("The Supreme Court has recognized that comparing statutes to determine whether one set of elements is a subset of another requires a purely textual comparison."). 18 U.S.C. § 2252A(a)(2), the "Any person who . . . knowingly receives or distributes . . . any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer . . ." 18 U.S.C. § 2252A(a)(5)(B), the "possession" provision, criminalizes the "knowing[ ] possess[ion of] any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer...."

The government contends that the receipt and possession provisions are not multiplicitous because each provision requires proof of an element that the other does not. First, it asserts that the receipt provision, 18 U.S.C. § 2252A(a)(2), requires that the pornographic material be "shipped or transported in interstate . . . commerce by any means, including by computer," while in 18 U.S.C. § 2252A(a)(5) the pornography need only be "produced using materials that have been . . . shipped or transported in interstate . . . commerce." Thus, the government argues, entirely homemade child pornography may support a conviction for violating the possession but not the receipt provision. Second, the government...

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