United States v. Burman
2012 WL 204542
8th Cir.2012Background
- Burman pleaded guilty to three counts of receipt of child pornography and nine counts of possession.
- Evidence showed Burman downloaded and shared child pornography via Gigatribe and Yahoo! Messenger, with thousands of depictions stored on his Toshiba hard drive.
- Superseding indictment charged Counts I–III (receipt) and Counts IV–XII (possession); Burman had a prior 1997 state conviction for indecent contact with a child.
- District court denied Burman’s motion to dismiss Counts I–III as unconstitutional double jeopardy, and imposed a five-level enhancement for distribution-for-a-thing-of-value and two criminal history points.
- Guideline range was calculated as 360 months to life for Counts I–III and 240 months for Counts IV–XII; court sentenced Burman to 420 months’ imprisonment plus supervised release.
- Burman timely appealed challenging double jeopardy, the sentencing enhancement, and the criminal-history calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy dismissal of counts I–III | Burman argues Counts I–III must be dismissed as duplicative of Count IV. | Burman contends waiver and lack of overlapping facts do not support dismissal. | Waived; no plain error because Counts I–III and IV rest on different facts/images. |
| Five-level § 2G2.2(b)(3)(B) enhancement | Burman challenges the distribution-for-a-thing-of-value enhancement. | Burman relies on lack of direct evidence of distribution; the government need only show expectation to receive material. | District court did not err; enhancement affirmed. |
| Criminal-history points under § 4A1.2(e)(2) | Two points for 1997 indecent-contact conviction should not count because offense started later. | Relevant conduct includes preindictment activity; the 2004 conduct is part of the instant offenses. | Two points properly assessed; conduct preceded and is relevant conduct. |
Key Cases Cited
- United States v. Muhlenbruch, 634 F.3d 987 (8th Cir.2011) (double jeopardy requires legally and factually same offense; waiver happens when guilty plea admits distinct offenses)
- United States v. Broce, 488 U.S. 563 (Supreme Court 1989) (guilty plea to facially distinct offenses forecloses double jeopardy challenge)
- United States v. Roy, 408 F.3d 484 (8th Cir.2005) (double jeopardy principles applied to multi-count pleas)
- United States v. Stults, 575 F.3d 834 (8th Cir.2009) (evidence of sophistication supporting intent to distribute under § 2G2.2(b)(3)(B))
- United States v. Griffin, 482 F.3d 1008 (8th Cir.2007) (direct and indirect evidence can prove expectation of receiving thing of value)
- United States v. Kennedy, 32 F.3d 876 (4th Cir.1994) (broader concept of relevant conduct includes preindictment activity)
- United States v. Starr, 486 F.Supp.2d 940 (N.D.Iowa 2007) (relevant conduct includes preindictment production of child pornography)
- United States v. Bobb, 577 F.3d 1366 (11th Cir.2009) (receipts and possessions can be based on distinct factual bases)
- United States v. Icaza, 492 F.3d 967 (8th Cir.2007) (reasonableness of sentence review; cited in discussion of harmless error)