United States v. Gall

• Decision Date: 15 July 2016
• Docket Number: No. 14-1948,14-1948
• Citation: 829 F.3d 64
• Parties: United States of America, Appellee, v. Ronald Gall, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

829 F.3d 64

United States of America, Appellee

v.Ronald Gall, Defendant, Appellant.

No. 14-1948

United States Court of Appeals, First Circuit.

July 15, 2016

Benjamin L. Falkner, with whom Krasnoo, Klehm & Falkner LLP, Andover, MA, was on brief, for appellant.

Juan Carlos Reyes–Ramos, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Kayatta and Barron, Circuit Judges, and McAuliffe,^* District Judge.

BARRON

, Circuit Judge.

Ronald Gall pleaded guilty to one count of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B)

. For that offense, the District Court sentenced him to 135 months in prison and 15 years of supervised release, subject to various conditions. Gall challenges his conviction, his prison sentence, and one of his conditions of supervised relief. We affirm the conviction and prison sentence, but vacate the challenged supervised release condition. We therefore remand for partial resentencing.

I.

In October 2013, officers of the Child Exploitation Investigations Group in San Juan, Puerto Rico, received information that six images of child pornography had been uploaded to the internet from two email addresses that Gall used.¹ Based on that information, the officers obtained a search warrant for Gall's residence.

When the officers executed the warrant, they found that Gall possessed over 2,000 images and videos of child pornography. The pornographic material included images of prepubescent children.

Gall was charged with one count of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B)

, and eight counts of transporting child pornography, in violation of 18 U.S.C. § 2252(a)(1). With respect to the possession count, the indictment alleged that the child pornography Gall possessed included depictions of “prepubescent children engaging in sexually explicit conduct.”

A person convicted of possessing child pornography is generally subject to a ten-year maximum sentence. 18 U.S.C. § 2252(b)(2)

. The maximum sentence is higher, however, “if any visual depiction involved in the offense involved a prepubescent minor or a minor who had not attained 12 years of age.” Id. In that case, the maximum term of imprisonment is twenty years. Id.

Gall chose not to go to trial. Instead, he reached a plea agreement with the government. Under the agreement, he would plead guilty to “COUNT ONE of the indictment”—the possession count—and the government would drop the eight counts of transporting child pornography.

In describing the possession count, Gall's plea agreement did not expressly reference the fact, included in the indictment, that the child pornography that Gall possessed included images of prepubescent children. Nor was there any express reference to images of prepubescent children in the section of the plea agreement that recounted the factual basis for Gall's plea.² Moreover, the agreement stated that the “maximum penalt[y]” for the count to which Gall would plead guilty was ten years in prison, which is the maximum prison sentence for possession of child pornography that does not depict prepubescent children. Id.

At Gall's change-of-plea hearing, the District Court advised Gall that he was pleading guilty to possession of child pornography and that the maximum available penalty was ten years' imprisonment. Gall agreed to the factual basis for the plea—which, like the plea agreement, included no express statement that Gall possessed images of prepubescent children—and the District Court accepted Gall's guilty plea.

The probation office then prepared the presentence report (PSR), and the parties appeared for sentencing. Before sentencing began, however, Gall's counsel notified the District Court that “there is an issue that I just found out, that I only noticed.” Defense counsel continued, “[w]hen this Defendant pled guilty, he pled guilty to possession of child porn.” Defense counsel then asked to go “[o]ff the record, if I can,” and a sidebar discussion ensued.

Following the sidebar, the District Court then stated on the record:

Based on what we discussed at sidebar off the record, it appears that at the change of plea hearing, Mr. Gall was not advised correctly as to the minimum and maximum terms of imprisonment to which he may be subject. So, therefore, we are going to have to start all over again.

So, [defense counsel], you said we could have another change of plea hearing sometime next week.

The District Court also stated that it “underst[ood]” that “[t]he terms of the plea ... will be the same.”

Defense counsel agreed that “the terms of the plea agreement [would be] exactly the same” and that “[i]t's basically changing a sentence.” And the District Court at that point added, “[b]ut certain matters have to be explained to Mr. Gall during the change of plea hearing, and we will have to do that.”

When the parties reconvened for a second change-of-plea hearing, the government noted “for the purposes of the record” that there had been “an error” by the government “in the drafting” of the plea agreement, “specifically the maximum penalty for Count One in this case.” The government stated that although the plea agreement “originally said [the maximum sentence] was 10 years, ... it's actually 20 years, given the way that it's charged,” that is, “[b]ecause this involves [images of] prepubescent minors.” The government noted that the parties had amended the plea agreement to state that the maximum sentence for Gall's offense was twenty years, not ten.

The District Court asked defense counsel whether she was “in agreement with what [the prosecutor] has indicated.” She answered that she was. Gall also answered affirmatively when asked whether he “underst[ood] that because the indictment charges pornography involving prepubescent minors, the term of imprisonment is not more than 20 years rather than [not more than] 10 years.” In addition, Gall agreed that he was “willing to plead guilty with these amendments to the plea agreement.” Finally, Gall and defense counsel both agreed that it was not “necessary to go through the plea agreement colloquy” and that the District Court could go “straight to sentencing.”

At sentencing, the District Court calculated Gall's sentencing range under the United States Sentencing Guidelines as 135 to 168 months—the same calculation contained in the PSR, to which no party had objected. The District Court sentenced Gall to 135 months in prison and 15 years of supervised release. Gall now appeals both the conviction and the sentence.³

II.

In challenging his conviction, Gall first argues that the District Court violated the Double Jeopardy Clause of the United States Constitution when it “effectively vacat[ed]” his first guilty plea and permitted the prosecution to continue via the second change-of-plea hearing. In making that argument, Gall contends that this first plea was to possession of child pornography and not to possession of prepubescent child pornography. From that premise, he then argues that the Double Jeopardy Clause barred the District Court from vacating that first plea and accepting the second. He thus contends that we must vacate the second plea and remand so that he may be resentenced in accordance with his first plea.⁴

The government responds that Gall mischaracterizes what happened below. The government insists that Gall's initial plea was to possessing prepubescent child pornography. The government further contends that, by holding a second change-of-plea hearing, the District Court merely ensured that Gall was properly advised—as he had not been at the initial change-of-plea hearing—of the maximum prison term for the offense to which he was pleading.

But even assuming that Gall's characterization of what happened below is correct, his Double Jeopardy Clause challenge fails due to our decision in United States v. Santiago Soto , 825 F.2d 616 (1st Cir. 1987)

. In that case, we explained that “[t]he mere acceptance of a guilty plea does not carry the same expectation of finality and tranquility that comes with a jury's verdict or with an entry of judgment and sentence.” Id. at 620. We explained that when “the judge [had] initially accepted the [defendant's] guilty plea [to a lesser-included offense] but then rejected it within the same proceeding,” “without having imposed sentence and entered judgment,” “[the] defendant was not placed in jeopardy in any meaningful sense.” Id.

For that reason, we concluded that “continuing [the] prosecution” of the defendant on the greater offense did not violate the Double Jeopardy Clause. Id.

Because Gall's case is not distinguishable from Santiago Soto

, he has not shown any error, let alone the “clear or obvious” error that he must under the plain error standard of review that he concedes applies due to his failure to raise this challenge below. United States v. Figuereo , 404 F.3d 537, 540 (1st Cir. 2005) (quoting United States v. Duarte , 246 F.3d 56, 60 (1st Cir. 2001) ). Accordingly, the Double Jeopardy Clause did not bar the government from “continuing its prosecution” of Gall on the greater offense, even if we assume, favorably to Gall, that his initial plea was to a lesser-included one. Santiago Soto , 825 F.2d at 620.⁵

III.

Gall next challenges his conviction on the ground that the Federal Rules of Criminal Procedure barred the District Court from “vacat[ing]” the first plea and accepting the second because the District Court took such actions after the PSR had issued. This challenge is also subject to review for plain error as it is also raised for the first time on appeal, as Gall acknowledges. See Figuereo , 404 F.3d at 540

. But even if we once again assume—favorably to Gall—that the initial plea was only to possession of child pornography and not to possession of child pornography depicting prepubescent children, this challenge still fails.

As Gall...