450 F. App'x 74
2d Cir.2011Background
- Calhoun pled guilty to one count of knowing receipt of child pornography and one count of knowing possession of child pornography.
- The district court sentenced 264 months for receipt and 121 months for possession, running concurrently, with concurrent supervised releases.
- Calhoun argues double jeopardy because possession is a lesser-included offense of receipt.
- Calhoun argues the § 2252A sentencing enhancement based on prior convictions violates the Sixth Amendment right to a jury trial.
- The court reviews for plain error on the double jeopardy claim and applies Apprendi/ Almendarez-Torres framework to the sentencing issue.
- The panel affirms the district court, rejecting both challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dual convictions violate double jeopardy | Calhoun contends possession is a lesser-included offense of receipt. | Calhoun maintains the charges are duplicative and subject to double jeopardy. | No plain error; convictions do not plainly duplicate. |
| Whether the sentencing enhancement based on prior convictions violates Sixth Amendment | Enhancement requires a jury finding beyond a reasonable doubt. | Prior-conviction exception permits non-jury factfinding for sentencing. | Merits no merit; exception applies and judgment affirmed. |
Key Cases Cited
- Ball v. United States, 470 U.S. 856 (U.S. 1985) (double jeopardy implications of multiple convictions)
- United States v. Broce, 488 U.S. 563 (U.S. 1989) (guilty plea waives certain double jeopardy claims)
- United States v. Kurti, 427 F.3d 159 (2d Cir. 2005) (guilty plea effects on double jeopardy)
- Overton, 573 F.3d 679 (9th Cir. 2009) (transfer/medium-different possession basis for double jeopardy)
- Dudeck, 657 F.3d 424 (6th Cir. 2011) (after-receipt possession vs. initial download)
- Schales, 546 F.3d 965 (9th Cir. 2008) (possession and receipt distinctions for charges)
- Whab, 355 F.3d 155 (2d Cir. 2004) (plain-error standard for double jeopardy errors)
- Apprendi v. New Jersey, 530 U.S. 466 (S. Ct. 2000) (any fact increasing maximum penalty must be found by a jury)
- Almendarez-Torres v. United States, 523 U.S. 224 (S. Ct. 1998) (prior-conviction exception to Apprendi)
- Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010) (well-settled rule on Six Amendment and sentencing)
- United States v. Irving, 554 F.3d 64 (2d Cir. 2009) (plain-error standard and constraints on double jeopardy review)
- Polouizzi, 564 F.3d 142 (2d Cir. 2009) (distinct images predicates for receipt vs. possession)