United States v. Gerrett Conover
673 F. App'x 261
3rd Cir.2016Background
- In Sept. 2012 Conover was stopped at the U.S. border; a laptop seized in New York contained a child-pornography video and additional images. He pled guilty in the Northern District of New York to possession and was sentenced to 97 months.
- A separate New Jersey investigation (search of Conover’s home) produced different child-pornography files and online communications with minors; a 13‑count NJ indictment followed.
- Conover pled guilty in New Jersey to Count Three (distribution of three videos), none of which matched the New York laptop video; other NJ counts were dismissed.
- Both PSRs applied a five‑level “pattern of activity” enhancement based on separate incidents of sexual abuse/exploitation; the NDNY sentencing used some NJ-conduct as relevant conduct, and the DNJ PSR used the enhancement as well.
- At the NJ sentencing court rejected parts of defense mitigation (expert testimony minimizing risk), imposed the statutory maximum 240 months to run concurrently with the NY sentence, and explained that relevant‑conduct consideration justified concurrency.
- Conover appealed, arguing double jeopardy (lesser‑included and double counting of conduct) and that the NJ sentence was procedurally and substantively unreasonable. The Third Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Conover) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether separate convictions (NY possession, NJ distribution) violate Double Jeopardy as lesser‑included offenses | NY possession was a lesser‑included of NJ distribution; same conduct punished twice | Convictions are for distinct offenses based on different materials and events; guilty pleas waive most challenges | No double jeopardy: offenses not same in fact because different files/dates; affirmed |
| Whether sentencing in NJ improperly double‑counted conduct already considered in NY sentencing | NJ sentence relied on conduct already used to enhance NY sentence, producing impermissible double punishment | Use of relevant conduct in guideline calculations does not constitute separate punishment; concurrent sentence addressed fairness | No double jeopardy: relevant conduct may inform sentencing; concurrent sentence within discretion |
| Whether NJ court procedurally erred by discounting defense expert and failing to consider §3553(a) factors | Court improperly disregarded expert testimony on low recidivism and failed to weigh public‑protection factor | Court meaningfully considered expert, family testimony, PSR, and §3553(a); explained reasons for discounting parts of expert opinion | No procedural error: record shows meaningful consideration of §3553(a) factors |
| Whether the 20‑year NJ sentence was substantively unreasonable (Guidelines/excessiveness) | Sentence excessive given Guidelines application and defendant’s actual conduct; reliance on §2G2.2 is problematic per Grober | Court considered Grober and mitigation but found aggravating facts (grooming, escalation, deceit) warranted maximum; ran concurrently with NY | No substantive error: sentence reasonable given facts and court’s stated rationale |
Key Cases Cited
- United States v. Pollen, 978 F.2d 78 (3d Cir.) (guilty plea limits later double‑jeopardy claims)
- United States v. Broce, 488 U.S. 563 (1989) (guilty plea and waiver principles)
- United States v. Miller, 527 F.3d 54 (3d Cir.) (double jeopardy where same images underpin multiple convictions)
- United States v. Finley, 726 F.3d 483 (3d Cir.) (no double jeopardy when different images underlie separate convictions)
- United States v. Gibbs, 190 F.3d 188 (3d Cir.) (relevant conduct used to increase punishment is not separate punishment)
- Witte v. United States, 515 U.S. 389 (1995) (relevant conduct consideration does not amount to double punishment)
- Gall v. United States, 552 U.S. 38 (2007) (abuse‑of‑discretion standard for sentencing review)
- United States v. Tomko, 562 F.3d 558 (3d Cir.) (two‑step sentencing review: procedural then substantive)
- United States v. Freeman, 763 F.3d 322 (3d Cir.) (requirements for procedural reasonableness at sentencing)
- United States v. Olhovsky, 562 F.3d 530 (3d Cir.) (district court need not discuss every §3553(a) factor if record shows consideration)
- United States v. Grober, 624 F.3d 592 (3d Cir.) (criticisms of §2G2.2 but not a mandatory basis to vary sentence)