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
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:
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).
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:
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.
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 explicitly relying on the Double Jeopardy Clause. It is true that Ehle's counsel did not object to his convictions on both counts, but he did argue at sentencing against consecutive sentences on the ground that there was really only one crime. He challenged the "concept of how you can receive child pornography without possessing child pornography. One is necessarily subsumed by the other." Ehle's counsel also stated, "I still come back to my original argument, you cannot receive child pornography without possessing it ... this is essentially one criminal charge." Defense counsel also argued that Congress did not intend separate penalties when a defendant is charged with both receipt and possession. Id. at 15. In response the Government argued among other things that someone could hypothetically receive pornography without possessing it. Id. at 9-10. Consideration of the issue on appeal is therefore appropriate.
There is a double jeopardy violation in Ehle's convictions for both receiving and possessing the same child pornography. The Double Jeopardy Clause "protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), two statutes proscribe different offenses only if each provision requires proof of a fact that the other does not. See Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996); Blockburger, 284 U.S. at 304, 52 S.Ct. 180. Applying this test, the two child-pornography statutes under which Ehle was charged proscribe the same offense, since the possessing provision does not requires proof of any fact that the receiving provision does not. Convicting Ehle of both "knowingly receiving" child
As a matter of plain meaning, one obviously cannot "receive" an item without then also "possessing" that item, even if only for a moment. The Supreme Court used the same reasoning in Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). In Ball, the Supreme Court considered a question analogous to that presented in the instant case: whether a felon possessing a firearm may be convicted and concurrently sentenced under 18 U.S.C. § 922(h)(1) for receiving that firearm and under 18 U.S.C. § 1202(a)(1) for possessing the same firearm. Id. at 857, 105 S.Ct. 1668. The Court's answer was "no." "Applying this rule [Blockburger] to the firearms statutes, it is clear that Congress did not intend to subject felons to two convictions; proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon." Id. at 862, 105 S.Ct. 1668. Based on Congressional intent derived in part from legislative history, "possession" of a firearm was a lesser-included offense of "receipt" of the same firearm, forbidding separate convictions under the two provisions.
Id. at 863-64, 105 S.Ct. 1668 (quoting Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981)).
What was true in Ball about separate provisions for "receiving" and "possessing" firearms is true in the instant case about separate provisions for "receiving" and "possessing" child pornography. "Receiving" child pornography necessarily requires one to "possess" that child pornography. There are no requirements for the "possessing" offense that are not also contained in the "receiving" offense. Compare 18 U.S.C. § 2252A(a)(2)(A) with § 2252A(a)(5)(B). "Possessing" child pornography is a lesser-included offense of "receiving" the same child pornography, meaning the two statutes proscribe the same offense. Rutledge, 517 U.S. at 297, 116 S.Ct. 1241.
Ehle's two charges involved the same child pornography. Count One charged Ehle with "knowingly receiving" child pornography
(Emphasis added.) While Ehle apparently did not keep everything he downloaded "in or about and between 2006 and April 2007" (the "receiving" charge), this does not change the fact that, per the indictment, everything Ehle downloaded and kept during this time frame was that found in his possession "in or about April 2007" (the "possessing" charge). The government does not claim that the "receiving" and "possessing" charges are based on completely different child pornography.
The Government's brief makes several arguments in support of its contention that "possessing" child pornography is not a lesser-included offense of "receiving" child pornography, but these arguments are not persuasive. First, the Government suggests that "possessing" is a lesser-included offense of "receiving" only where "possessing" is "incidental" to "receiving." Hence, where an individual "possessed" the child pornography in question for a sufficient amount of time beyond that needed merely to "receive" it, "possessing" would not be a lesser included offense of "receiving." As Ehle correctly points out, though, this approach would require a focus on a defendant's specific conduct, conflicting with the analytical approach of Blockburger, which instead requires that the statutory provisions' required elements be viewed in the abstract. See Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); United States v. Bobb, 577 F.3d 1366, 1372 (11th Cir.2009); United States v. Miller, 527 F.3d 54, 72 (3d Cir.2008). Moreover, this approach would also require wholly subjective line-drawing to determine when possession incidental to receiving morphs into possession independent of the reception. The Government suggests that possession without receipt would occur in the case of retention of child pornography for weeks, months, or even years after receipt; repeated viewing of the pornography; or electronically transferring the pornography to different locations. But no standard is proposed for drawing such a line. The same argument presumably would apply to receiving and possessing weapons, but appears not even to have been contemplated by the Supreme Court in Ball.
The Government tries to justify its "incidental possession" approach by analogy to United States v. Gore, 154 F.3d 34 (2d Cir.1998), which concerned dual convictions under 21 U.S.C. § 841(a)(1) for "possessing a controlled substance" and "possessing a controlled substance with the intent to distribute." The analogy is misplaced, as Gore involves two offenses that are by statutory construction distinct, but on the facts may be the same conduct. That is the reverse of our case, which involves two offenses that by statutory construction are the same, but the Government contends are somehow factually distinct. The argument simply does not work in that direction.
Gore holds that, even assuming two statutes each contain elements not present in the other, it is possible on certain facts that the two crimes are nonetheless the same for double jeopardy purposes. In Gore, the defendant was convicted of both distributing a controlled substance and possession with the intent to distribute that substance based on evidence of the same single sale of heroin. Id. at 39. Gore held that "distributing a controlled substance" and "possessing with intent to distribute the substance" facially satisfy the Blockburger test, because each offense requires proof of a fact that the other does not. Id. at 45. Notwithstanding this, the offenses merge into the same crime for double jeopardy purposes "[w]here the evidence shows only that the defendant handed over a packet of drugs. In that limited scenario, the convictions for both possession with intent and distribution will fail the Blockburger test because no longer does each offense require proof of a fact that the other does not." Id. at 46 (internal quotation marks and citation omitted). Since that was the very scenario presented in Gore, the court held that the dual convictions for distribution and possession with intent to distribute violated the Double Jeopardy Clause. Id. at 44. The Government cites Gore to argue the reverse, that even if the child pornography statutes facially state the same crime, so as to violate Blockburger and result in double jeopardy, the specific facts of this case nonetheless make the crimes distinct. But this is just as illogical as inferring from the statement that "not all birds are robins" that "not all robins are birds." The possibility that statutorily distinct provisions may merge on certain facts simply does not suggest that statutorily identical provisions may diverge on certain facts.
As "knowingly receiving" and "knowingly possessing" the same child pornography proscribe the same offense, there is a rebuttable presumption that Congress did not intend to impose two punishments for the offense. Rutledge, 517 U.S. at 297, 116 S.Ct. 1241. Following this presumption, convicting under both statutory provisions would violate the Double Jeopardy clause. While the presumption may be rebutted by "a plainly expressed contrary view on the part of Congress," Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985), no such "plainly expressed contrary view" can be found on either the face of the child-pornography statutes or in their legislative history. The Government cites several portions of the statutes' legislative history to argue that the prohibitions
However, all this appears to indicate is that Congress viewed an individual's "knowingly possessing" child pornography as a separately punishable offense where the same individual had not also "knowingly received" the same child pornography. Indeed, the legislative history of the 1990 amendments to the child pornography statutes, which added the crime of "knowingly possessing" child pornography to a scheme that already included "knowingly receiving" child pornography, indicates that the crime of "knowingly possessing" child pornography was meant as a gap-filling provision, targeting those who "possessed" child pornography without having also "received" the same child pornography. Senator Thurmond stated, "Current law prohibits the knowing transportation, distribution, receipt or reproduction of child pornography which has traveled in interstate commerce. Those who simply possess or view this material are not covered by current law. This legislation corrects this insufficiency." 136 CONG. REC. S4729 (1990). That being the case, it would in fact be contrary to Congressional intent to convict an individual for both "knowingly receiving" and "knowingly possessing" the same child pornography. This is true even though "knowingly receiving" carries a mandatory minimum term while "knowingly possessing" does not. This may reflect Congress's determination that merely "knowingly possessing" certain child pornography is less blameworthy than "knowingly receiving" (and along with it, "knowingly possessing") other child pornography. In other words, possessing is a lesser included offense to receiving. The evidence simply does not "plainly express" any contrary view on the part of Congress to provide separate punishment for "knowingly receiving" and "knowingly possessing" the same child pornography. To the extent the matter is considered doubtful, moreover, the rule of lenity cautions that such doubt be resolved in Ehle's favor. As the Supreme Court said in Albernaz v. United States, 450 U.S. 333, 342, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), the "policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.... [T]he `touchstone' of the rule of lenity is statutory ambiguity."
Convicting Ehle of both "knowingly receiving" and "knowingly possessing" the same child pornography therefore violates the Double Jeopardy Clause. Decisions in other circuits support this holding. The Third Circuit in Miller, 527 F.3d at 70-74, looked at the same statutory provisions and similarly held that possession was a lesser included offense of receiving, and the court vacated convictions that were based on the same child pornography. Over a dissent, the Ninth Circuit did the same in United States v. Davenport, 519 F.3d 940, 943-47 (9th Cir.2008), rejecting an argument that Congress nonetheless intended multiple punishments. The Eleventh Circuit agreed with these legal conclusions
Finally, we would reach the same conclusion even under a plain error analysis if we were to conclude that the defendant did not adequately raise the foregoing argument below. Plain error occurs where there is "(1) `error,' (2) that is `plain,' and (3) that `affect[s] substantial rights.' If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error `seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.'" Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). The foregoing analysis shows the "error" in Ehle's dual convictions. Moreover, the Supreme Court's holding in Ball v. United States— that dual convictions for possessing and receiving the same firearm violate the Double Jeopardy clause—is sufficiently analogous to the instant matter such that the constitutional error in Ehle's two child-pornography convictions is quite "plain." Finally, the error "affected substantial rights" and "seriously affected the fairness, integrity, or public reputation of the judicial proceedings." As this court explained in an earlier double jeopardy case, "[t]here can be no doubt that the district court erred by letting stand [defendant's] convictions and sentences on both Count One and Count Three and that this error affects [defendant's] substantial rights and undermines the fairness and integrity of the judicial proceedings." United States v. Garcia, No. 96-1073, 121 F.3d 710, 1997 WL 420557, at * 10 (6th Cir. July 8, 1997). The Third and Ninth Circuits reached the same conclusion when they undertook a plain error analysis of double jeopardy challenges to the child-pornography statutes. See Davenport, 519 F.3d at 947; Miller, 527 F.3d at 73.
The only constitutionally sufficient remedy in this case is to remand to the district court for it to vacate one of the two convictions in its discretion. See Ball, 470 U.S. at 864-65, 105 S.Ct. 1668; Miller, 527 F.3d at 74; Sellers, 840 F.2d at 355. Upholding the convictions and running Ehle's sentences concurrently rather than consecutively would be a legally insufficient remedy. See Ball, 470 U.S. at 864-65, 105 S.Ct. 1668.
In light of our holding, it is not necessary to reach Ehle's alternative argument that his total sentence of 360 months is substantively unreasonable. Our resolution, moreover, does not impair Ehle's plea agreement. Ehle still validly pleaded guilty to "knowingly possessing" and "knowingly receiving" child pornography. He can only be convicted, however, of one of the two charges.
We vacate the judgment of the district court and remand for the district court to vacate one of Ehle's two convictions, and resentence him on the other.
