United States v. Ehle
2011 U.S. App. LEXIS 9689
| 6th Cir. | 2011Background
- Ehle was charged with knowingly receiving and knowingly possessing child pornography; pleaded guilty to both and was sentenced to consecutive terms totaling 360 months.
- Plea agreement waived the right to collaterally attack conviction/sentence, but the district court and the AUSA clarified the waiver covered only collateral attack, not direct appeal.
- At sentencing the district court adopted the government's position for consecutive sentences: 240 months for receiving and 120 months for possessing, totaling 360 months.
- Ehle argued for a below-Guidelines sentence and concurrent sentences; the government argued for the straight Guidelines-range sentence with consecutive terms.
- This appeal centers on whether the two convictions for the same underlying child pornography violate the Double Jeopardy Clause and, if so, the proper remedial action (vacating one conviction).
- The court ultimately held that receiving and possessing the same child pornography are the same offense for double jeopardy purposes and that the proper remedy is to vacate one conviction and resentence on the remaining charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dual convictions for receiving and possessing the same child pornography violate Double Jeopardy. | Ehle argues the two counts constitute multiple punishments for the same offense. | The government contends separate offenses exist and may be punished separately. | Yes; dual convictions violate Double Jeopardy and must be remedied. |
| Whether Ehle waived the double jeopardy challenge. | Waiver via plea agreement collateral-attack waiver and contemporaneous guilty-plea proceedings. | Waiver does not bar a face-of-the-indictment double jeopardy claim; record shows argument was raised at sentencing. | Waiver not controlling; double jeopardy issue resolvable on the face of the record. |
| What is the proper remedy for the double jeopardy violation? | Consecutive sentences should stand; no need to vacate a conviction. | One conviction must be vacated; Ball remedy required to avoid duplicative punishment. | Remand to vacate one conviction and resentence on the remaining charge. |
Key Cases Cited
- Ball v. United States, 470 U.S. 856 (1985) (possession is a lesser included offense of receipt; no dual punishment)
- United States v. Broce, 488 U.S. 563 (1989) (plea agreements do not automatically bar double jeopardy claims if record shows facially prosecutable charges)
- Menna v. New York, 423 U.S. 61 (1975) (plea does not waive double jeopardy when charge facially unconstitutional)
- United States v. Ragland, 3 F. App'x 279 (6th Cir. 2001) (double jeopardy arguments reviewed for plain error when raised post-plea)
- United States v. Smith, 532 F.3d 1125 (11th Cir. 2008) (simultaneous offenses and waiver considerations in double jeopardy)
- Davenport v. United States, 519 F.3d 940 (9th Cir. 2008) (rejected separate-punishment argument for same offense under certain conditions)
- Miller v. United States, 527 F.3d 54 (3d Cir. 2008) (possession is a lesser included offense of receiving for double jeopardy purposes)
- Polouizzi v. United States, 564 F.3d 142 (2d Cir. 2009) (acknowledged similar reasoning on multiple punishments under same statutes)
- Gore v. United States, 154 F.3d 34 (2d Cir. 1998) (dual convictions may merge where evidence shows only one course of conduct)
- Rutledge v. United States, 517 U.S. 292 (1996) (statutes proscriptive overlap considered under Blockburger)
- Albernaz v. United States, 450 U.S. 333 (1981) (lenity cautions against interpreting statutes to increase penalties)
- Garrett v. United States, 471 U.S. 773 (1985) (plain expression of contrary congressional intent required to override the presumption against duplicative punishment)