U.S. v. Kuchinski

• Decision Date: 27 November 2006
• Docket Number: No. 05-30607.,05-30607.
• Citation: 469 F.3d 853
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Charles KUCHINSKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

469 F.3d 853

UNITED STATES of America, Plaintiff-Appellee, v. John Charles KUCHINSKI, Defendant-Appellant.

No. 05-30607.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 24, 2006.

Filed November 27, 2006.

COPYRIGHT MATERIAL OMITTED

Brad L. Arndorfer, Arndorfer Law Firm, P.C., Billings, MT, for the appellant.

Marcia Hurd, Assistant U.S. Attorney, Billings, MT, for the appellee.

Appeal from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. No. CR-04-00149-RFC.

Before: KOZINSKI and FERNANDEZ, Circuit Judges, and CARNEY,^* District Judge.

FERNANDEZ, Circuit Judge:

John C. Kuchinski appeals his conviction and sentence for receipt and possession of child pornography. 18 U.S.C. §§ 2252A(a)(2), (a)(5)(B). Principally, he asserts that his prosecution for receipt and possession violated the double jeopardy clause,¹ that any use of the United States Sentencing Guidelines violates the separation of powers doctrine, and that he was improperly sentenced when all child pornography images on his computer were counted for sentencing purposes. We affirm his conviction, but vacate his sentence and remand.

BACKGROUND

After obtaining information that Kuchinski was involved in child pornography, the FBI obtained a search warrant for his computer. Upon execution of that warrant, between 15,120 and 19,000 separate images of child pornography were recovered therefrom. Sixteen of those images were located in the computer's downloaded files and 94 were located in its deleted files (recycle bin). Kuchinski does not argue that he is not responsible for the possession of those images. However, 1,106 images were in the Active Temporary Internet Files and another 13,904 to 17,784 images were in the Deleted Temporary Internet Files.² Thereafter, Kuchinski was indicted for receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2) (count I), possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B) (count II), and forfeiture of his computer equipment, 18 U.S.C. § 2253 (count III). He pled not guilty.

Kuchinski then entered into a plea agreement which provided that he would plead guilty to possession of child pornography and admit the forfeiture, whereupon the government would dismiss the receipt of child pornography count. Alas, although the plea agreement spelled out the fact that Kuchinski understood he was pleading to a charge which carried a maximum term of imprisonment of ten years, at the change of plea hearing he argued that the ten-year maximum term mandated by the PROTECT Act³ did not apply to him. The government disputed that, said it was a brand new issue, and declared that it was not willing to go forward with the plea agreement if Kuchinski refused to plead to charges under the PROTECT Act. After some discussion, the district court refused to accept or approve the plea agreement at that point. The court then continued the hearing to a later date.

At the later hearing, it became apparent that Kuchinski would not accept the plea agreement as presented, and he, instead, announced that he was prepared to plead guilty to to all three counts of the indictment, if that could be a conditional plea. The government, however, refused to agree to a conditional plea. Therefore, Kuchinski did plead guilty to possession of child pornography (count II) and admitted the forfeiture (count III). That left the receipt of child pornography charge (count I) for trial.

But Kuchinski still had one more trick up his sleeve. He, in effect, contended that because all elements of possession of child pornography were incorporated into the elements of receipt of child pornography, it would violate double jeopardy if the district court proceeded to trial on the latter count. The district court was not convinced and did proceed to hold a bench trial at which Kuchinski was found guilty.

Then came sentencing and a host of new objections. The only objections relevant on this appeal are Kuchinski's claims that: since the PROTECT Act, the separation of powers doctrine is violated because the United States Sentencing Commission need not have any judges on it; the PROTECT Act also removes sentencing discretion from district judges and, thereby, offends due process; and the district court erred when it calculated the number of child pornography images for which Kuchinski would be charged, a calculation that affected his Sentencing Guideline offense level. See USSG § 2G2.2(b)(6).⁴

The district court considered and rejected Kuchinski's challenges and sentenced him to seventy months imprisonment and three years of supervised release on both counts, with the sentences to run concurrently. This appeal followed.

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

We review claims that the district court is required to enforce a plea agreement de novo. See United States v. Fagan, 996 F.2d 1009, 1013 (9th Cir.1993). We also review claims that a rule or statute violates the separation of powers doctrine de novo. See United States v. Yacoubian, 24 F.3d 1, 3 (9th Cir.1994). Similarly, we review claims of double jeopardy violations de novo. See United States v. Jose, 425 F.3d 1237, 1240 (9th Cir.2005). And, as with other constitutional issues, we review claims that the Sentencing Guidelines are unconstitutional de novo. See United States v. Leasure, 319 F.3d 1092, 1096 (9th Cir.2003).

We review the district court's interpretation of the Sentencing Guidelines de novo. See United States v. Nielsen, 371 F.3d 574, 582 (9th Cir.2004). Moreover, we review applicability of the Sentencing Guidelines to a particular offense de novo. See United States v. Alcarez-Camacho, 340 F.3d 794, 796 (9th Cir.2003). The district court's applications of the Sentencing Guidelines to the facts of a case are reviewed for an abuse of discretion. See United States v. Miguel, 368 F.3d 1150, 1155 (9th Cir.2004). However, factual findings in the sentencing phase are reviewed for clear error. Id.

DISCUSSION

Kuchinski launches a number of attacks on the process that led to his conviction on both substantive counts—receipt of child pornography and possession of child pornography. We will first consider those. Thereafter, we will consider his attack on the whole Guideline regime as well as its application to those convicted of child pornography. Finally, we will consider his assertion that the Guideline range was calculated improperly.

A. The Findings of Guilt (1) The Plea Agreement

Kuchinski insists that once the government entered into a plea agreement, it was absolutely bound to the agreement's terms, even before the district court accepted the agreement. He is wrong.

Had the district court already accepted the plea agreement, the government could not have easily withdrawn from it. See Fagan, 996 F.2d at 1013. But here the district court had not yet accepted it and "[a] plea agreement that has not been entered and accepted by the trial court does not bind the parties." Id.; see also United States v. Alvarez-Tautimez, 160 F.3d 573, 576-77 (9th Cir.1998); United States v. Savage, 978 F.2d 1136, 1138 (9th Cir.1992); cf. Mabry v. Johnson, 467 U.S. 504, 507-08, 104 S.Ct. 2543, 2546, 81 L.Ed.2d 437 (1984). We recognize that where detrimental reliance is shown, the government may be bound even before the district court accepts the agreement,⁵ but no detrimental reliance appears here.

(2) The Attempt to Enter a Conditional Plea

Once his allonge regarding the plea agreement was parried, Kuchinski tried to unilaterally enter a plea to all counts, while preserving his claim about the plea agreement. When the government refused to accede to that new proposition, Kuchinski complained that Federal Rule of Criminal Procedure 11(a)(2) was an unconstitutional violation of the separation of powers doctrine because permitting a conditional plea was an issue that should be left to the courts alone. Again, he is wrong.

It is, of course, important to maintain a separation of powers, lest liberty be overturned by an undue concentration of power in one of the branches of the government. See Mistretta v. United States, 488 U.S. 361, 380-82, 109 S.Ct. 647, 659-60, 102 L.Ed.2d 714 (1989). But "the greatest security against tyranny—the accumulation of excessive authority in a single Branch—lies not in a hermetic division among the Branches, but in a carefully crafted system of checked and balanced power within each Branch." Id. at 381, 109 S.Ct. at 659-60. Thus, "our constitutional system imposes upon the Branches a degree of overlapping responsibility, a duty of interdependence as well as independence the absence of which `would preclude the establishment of a Nation capable of governing itself effectively.'" Id. at 381, 109 S.Ct. at 659; see also United States v. Ray, 375 F.3d 980, 995 (9th Cir. 2004).

None of the dire consequences that the doctrine seeks to protect us from are threatened by a rule providing that a defendant may enter a conditional guilty plea "[w]ith the consent of the court and the government." Fed.R.Crim.P. 11(a)(2). It is true that courts do have an interest in the efficient administration of justice,⁶ but it is far from clear that the taking of a conditional guilty plea will always be efficient. In fact, it may cause what almost amounts to an interlocutory appeal, and result in a great loss of ultimate efficiency. See Fed.R.Crim.P. 11(a)(2) advisory committee's notes. It may also invade the Executive's ultimate ability to fully and fairly pursue a conviction, and the government does have an interest in that pursuit. See Ohio v. Johnson, 467 U.S. 493, 502, 104 S.Ct. 2536, 2542, 81 L.Ed.2d 425 (1984).

At any rate, while Kuchinski sees great danger to our system, we are not gallied by his nightmare. Rather, we see a somewhat common occurrence in a slightly...