United States v. Gall
829 F.3d 64
| 1st Cir. | 2016Background
- In 2013 Gall was investigated after images tied to his email addresses were uploaded; a search found over 2,000 images and videos of child pornography, including prepubescent victims.
- Indictment charged one count of possession (alleging prepubescent images) and eight counts of transportation; Gall pleaded guilty to Count One (possession) under a plea agreement that initially misstated the maximum penalty as 10 years.
- At the first change-of-plea hearing the district court accepted the plea but failed to advise Gall correctly about the possible 20-year maximum for possession involving prepubescent minors; the court later held an off-the-record sidebar and conducted a second plea colloquy clarifying the 20-year maximum.
- The PSR, to which neither party objected, computed Guidelines resulting in a 135–168 month range; the court sentenced Gall to 135 months imprisonment and 15 years supervised release.
- On appeal Gall raised multiple challenges: double jeopardy and Rule 11/32 issues arising from the vacated first plea, ineffective assistance of counsel, alleged government breach at sentencing, guideline enhancements, substantive unreasonableness, and a challenge to a supervised-release condition banning all pornography and entry to places where it’s available.
Issues
| Issue | Plaintiff's Argument (Gall) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether vacating the first plea and taking a second plea violated Double Jeopardy | Gall: first plea was to lesser offense (10-year max); vacatur/second plea to greater offense placed him in double jeopardy | Gov: initial plea effectively was to possession involving prepubescent minors; second colloquy corrected advisory error and did not violate Double Jeopardy | Court: No Double Jeopardy violation; Santiago Soto controls—no jeopardy where plea accepted then rejected before sentencing within same proceeding |
| Whether Rules 11/32 barred vacating the plea after PSR issued | Gall: Rules forbid vacating a bargained plea after PSR without defendant's consent | Gov: Court ensured Gall consented to second plea; district court complied with Rules | Held: No error—Gall consented to second plea, so proceeding was permitted under Rules 11/32 |
| Whether counsel rendered ineffective assistance by not objecting to (or preventing) the second plea and higher exposure | Gall: counsel should have defended original bargain limiting exposure to 10 years; failure prejudiced him | Gov: Plea agreement ambiguous on whether Count One included prepubescent images; record undeveloped to resolve Strickland prejudice or deficient performance | Held: Court declines to resolve ineffective-assistance claim on direct appeal; allows §2255 and directs appointment of counsel if indigent because claim is factually complex and has a fair likelihood of success |
| Whether the special supervised-release condition banning all pornography and entry to locations where it’s available is supported | Gall: condition is overbroad and lacks case-specific justification; challenged on plain-error review | Gov: condition reasonably related to treatment/recidivism risk and PSR shows problematic pornography use | Held: Vacated that portion of the condition (adult pornography and entry ban) for lack of case-specific evidentiary support; remanded for resentencing limited to reexamining the condition |
Key Cases Cited
- United States v. Santiago Soto, 825 F.2d 616 (1st Cir. 1987) (acceptance then rejection of plea within same proceeding does not trigger double jeopardy)
- Strickland v. Washington, 466 U.S. 668 (Sup. Ct. 1984) (standard for ineffective assistance of counsel)
- Puckett v. United States, 556 U.S. 129 (Sup. Ct. 2009) (plain-error standard for unpreserved breach claims)
- United States v. Cruz, 709 F.2d 111 (1st Cir. 1983) (limitations on using PSR to modify bargained-for plea absent defendant's consent)
- United States v. Kurkculer, 918 F.2d 295 (1st Cir. 1990) (same principle regarding vacatur after PSR but consent exception)
- United States v. Perazza–Mercado, 553 F.3d 65 (1st Cir. 2009) (vacating broad pornography possession condition for lack of case-specific justification)
- United States v. Medina, 779 F.3d 55 (1st Cir. 2015) (same as Perazza–Mercado; requirement of reasoned, case-specific explanation for restrictive supervised-release conditions)
- United States v. Roy, 438 F.3d 140 (1st Cir. 2006) (supervised-release condition may be vacated for inadequate evidentiary support)