U.S. v. Ehle

• Citation: 640 F.3d 689
• Decision Date: 12 May 2011
• Docket Number: No. 09–5389.,09–5389.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.David EHLE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

640 F.3d 689

UNITED STATES of America, Plaintiff–Appellee,

v.David EHLE, Defendant–Appellant.

No. 09–5389.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 12, 2010.Decided and Filed: May 12, 2011.

ARGUED: Frank W. Heft, Jr., Office of the Federal Defender, Louisville, Kentucky, for Appellant. Terry M. Cushing, Assistant United States Attorney, Louisville, Kentucky, for Appellee. ON BRIEF: Frank W. Heft, Jr., Scott T. Wendelsdorf, Office of the Federal Defender, Louisville, Kentucky, for Appellant. Terry M. Cushing, Monica Wheatley, Jo E. Lawless, Assistant United States Attorneys, Louisville, Kentucky, for Appellee.Before: BATCHELDER, Chief Judge; KEITH and ROGERS, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Defendant Ehle was charged with one count of “knowingly receiving” child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1), and one count of “knowingly possessing” the same child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Following a guilty plea to both crimes, he was sentenced to consecutive terms of imprisonment. Because the offense of knowingly receiving child pornography includes all of the elements of the lesser-included offense of possessing the same child pornography, and because Congress did not explicitly require multiple punishments, there has been a violation of defendant's right not to be subjected to double jeopardy. It is therefore necessary to vacate the judgment below.

Ehle's indictment charged him with knowingly receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1), knowingly possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), and two other counts not relevant here. Ehle pleaded guilty to both charges. In his plea agreement, Ehle stated that he “knowingly and voluntarily waives the right to contest or collaterally attack his conviction and the resulting sentence pursuant to 28 U.S.C. § 2255 or otherwise, including, but not limited to claims for ineffective assistance of counsel.”

However, at the plea hearing, both the Assistant United States Attorney and the district court made clear that this waiver extended only to collateral attack. The AUSA stated:

[Mr. Ehle] is not waiving his right to directly appeal imposition of sentence in this case. Numbered paragraph 13 says that he is, however, waiving his right to collaterally attack the conviction or sentence at a later time under a habeas petition, under 28 USC 2255 or otherwise, but we do want it to be clear that Mr. Ehle is not waiving his right to a direct appeal from any sentence which would be imposed by this court....

In accepting the plea, the district court stated to defendant that “you're not waiving your right to make a direct appeal to the United States Court of Appeals for the Sixth Circuit on the matter of the sentence imposed here.”

At sentencing, counsel for Ehle did not contest the PSR calculation of an advisory Guidelines range of 360 months to life. He argued for a below-Guidelines-range sentence of 240 months, and for running the sentences for “receiving” and “possessing” child pornography concurrently. The Government argued for a Guidelines-range sentence of 360 months, which required running the “receiving” and “possessing” sentences consecutively. This was because “knowingly receiving” child pornography was subject to a maximum sentence of twenty years, while “knowingly possessing” child pornography was subject to a maximum sentence of ten years. The district court adopted the Government's recommendation and sentenced Ehle to 240 months on the “receiving” charge and 120 months on the “possessing” charge, running consecutively, for a total of 360 months.

Ehle on appeal relies on the Double Jeopardy Clause to challenge his 360–month sentence. It was not clear from Ehle's briefs whether he is challenging his double convictions, or whether he is attempting to use the Double Jeopardy Clause to challenge the consecutive sentences as unreasonable. At oral argument, Ehle's counsel clarified that he now argues that his convictions for both “knowingly receiving” and “knowingly possessing” child pornography violate the Double Jeopardy Clause, and that this court should remand for the district court to vacate one of the two convictions. Ehle also argues in the alternative that his total sentence is greater than necessary to comply with the purposes of 18 U.S.C. § 3553(a)(2).

We first reject a threshold waiver argument. The Government argues that Ehle waived his double jeopardy argument, not by the provision in the plea agreement waiving later collateral attack, but by his “knowing, voluntary, and counseled pleas of guilty to the separate charges.” While the Supreme Court in United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), upheld a waiver of double jeopardy rights where the double jeopardy claim required consideration of evidence outside the original record, the Court explicitly preserved its previous holding in Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), that “a plea of guilty to a charge does not waive a claim that— judged on its face—the charge is one which the State may not constitutionally prosecute.” Broce, 488 U.S. at 575, 109 S.Ct. 757 (quoting Menna, 423 U.S. at 63 n. 2, 96 S.Ct. 241). In short, a guilty plea or plea agreement does not waive a double jeopardy challenge to a charge where, judged from the face of the indictment and the record existing at the time the plea was entered, the charge is one that the government could not constitutionally prosecute under the Double Jeopardy Clause. See Broce, 488 U.S. at 575–76, 109 S.Ct. 757; Menna, 423 U.S. at 63 n. 2, 96 S.Ct. 241; United States v. Smith, 532 F.3d 1125, 1127 (11th Cir.2008); United States v. Garcia–Valenzuela, 232 F.3d 1003, 1007 n. 2 (9th Cir.2000); United States v. Ragland, 3 Fed.Appx. 279, 284 n. 3 (6th Cir.2001); United States v. Grant, 114 F.3d 323, 329 (1st Cir.1997); Sellers v. Morris, 840 F.2d 352, 355 (6th Cir.1988). As explained below, Ehle's charges for “receiving” and “possessing” the same child pornography are just such types of charges.

This rule is not limited to successive prosecutions, i.e., situations involving one prosecution and conviction, a lapse of time, and then a separate prosecution and conviction for the same criminal activity. On the contrary, the reasoning in Menna logically applies just as well to simultaneous prosecutions on separate charges for the same criminal conduct:

A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established. Here, however, the claim is that the State may not convict petitioner no matter how validly his factual guilt is established. The guilty plea, therefore does not bar the claim. We do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that judged on its face the charge is one which the State may not constitutionally prosecute.

Menna, 423 U.S. at 63 n. 2, 96 S.Ct. 241. There is no logical basis for not applying this analysis to simultaneous prosecutions. When the Supreme Court later distinguished Menna in Broce, a case that also involved simultaneous proceedings, the Supreme Court found a waiver not because the guilty pleas were simultaneous, but instead because of the necessity of looking outside the original record. Cases from other circuits have accordingly declined to find a double jeopardy waiver in simultaneous plea cases where it was not necessary to look beyond the indictments to see whether the defendant received multiple sentences for the same crime. See Smith, 532 F.3d at 1127–28; Grant, 114 F.3d at 328–29. The Eleventh Circuit in Smith relied on its prior holding in United States v. Kaiser, 893 F.2d 1300, 1302 n. 2 (11th Cir.1990), which explicitly rejected a limitation on Menna based on the fact of simultaneous prosecution.

This court's reasoning in United States v. Ragland, albeit unpublished, also supports rejection of the waiver argument in this case. In Ragland, the defendant pled guilty to two counts of perjury. Ragland, 3 Fed.Appx. at 282. On appeal, the defendant raised a double jeopardy challenge to these counts, arguing that they were multiplicitous. Id. at 284. In briefing, the government argued that the defendant waived her double jeopardy challenge by failing to raise it with the district court and by pleading guilty; the government abandoned its waiver theory at oral argument. Id. at 284 n. 3. Nonetheless, we explained that the defendant did not waive the double jeopardy challenge, since the court “permits review of those cases in which the multiplicity of charges is apparent in the record and resulted in multiple sentences,” and because “the Supreme Court has suggested and many circuits have found that guilty pleas do not waive double jeopardy issues predicated on multiple punishments where, as here, the issues appear on the face of the indictment and can be resolved without an additional evidentiary hearing.” Id. (citing Broce, 488 U.S. at 575–76, 109 S.Ct. 757).

Waiver has accordingly not been shown and, moreover, it is not clear that we are limited to plain error review. In Ragland, we went on to find that the double jeopardy challenge was forfeited, rather than waived, and was subject to plain error review. Id. We relied in Ragland on our application of plain error review in United States v. Branham, 97 F.3d 835, 841–42 (6th Cir.1996), which held that a double jeopardy claim premised on multiplicity of punishments was forfeited (not waived) when the claim had not been raised with the trial court. In the present case, in contrast, Ehle at sentencing made arguments that support a double jeopardy claim, although without...