BARKSDALE, Before BENAVIDES OWEN, Circuit Judges.
OWEN, Judgе: Circuit Following trial, a jury Joseph Buchanan was convicted of four counts of receiving child pornography transported in inter- state commerce computer1 and one possession count of pornography.2 Buchanan appeals his conviction and sen- tence on grounds. numerous Because the first four against counts Buchanan are multiplieitous, we vacate them and remand with instructions to reinstate one of the convictions and to resentence him con- sistent with opinion. All of Buchan- an’s other claims lack merit.
I
Joseph Buchanan employed by the Army States Corps Engineers as park ranger and served at its Lake Texoma location. ranger Each was as- signed an individual computer re- quired a unique password for access and would log the actions on computer to a record tied to the specific ranger. In ear- ly 2001, а Corps system administrator in Tulsa received a complaint from the Texo- ma station that the office’s internet access was slow. The administrator used a pro- gram to determine that Buchanan’s com- puter was slowing down office’s access by connecting to “an porn X-rated site.” The Corps began monitoring Buchanan’s computer use and determined that he con- Lynn Terri Hagan, Atty., Asst. U.S. Pla- tinued to view on pornography his office no, TX, for U.S. computer. 2252(a)(2)(2000). 1. 18 U.S.C. 2252(a)(4)(A). 18 U.S.C. investigated Wheeler Agent Wes FBI confronted, admitted Buchanan
When found use and computer Buchanan’s it never do would he and stated misuse chil- depicted on the CD large images four Jordan, Ron March again. engaged years old 10 to from dren report received manager, Lake Texoma met Wheeler conduct. sexually explicit viewing pornog- again Buchanan was 12, 2002 and September network administrator’s Using the raphy. the CD. from printed him showed accessed Jordan password, had visited that he admitted pornographic and discovered containing child internet sites involving adults and movies photographs saved past in the such he and that had out printed bestiality. Jordan as as well *4 them, later deleted and images, viewed Buchanan, who questioned and image an visit- typically he the sites them. He said pornography viewing to again admitted pornog- child adult and both ed contained In these activities. to cease promised and raphy. report another received Jordan April, de- examiner computer forensic An FBI im- Buchanan, pornographic found about 127 im- contained CD termined computer, Buchanan’s a scan of ages on minors from depicting including 54 ages, days. two Buchanan suspended and fifty found examiner The years old. to moni- resumed Jordan August mi- depicting imagеs small, “thumbnail” after re- computer use toring Buchanan’s to page a web displayed on pictures nors — was that Buchanan ceiving report another a could which viewer an image, preview comput- on his work viewing pornography larger, higher-resolution access a click to porno- found August Jordan On er. to addition image the same version of —in temporary Buchanan’s in images graphic pornogra- of images larger the four on hard location folder—the internet had identified. earlier Agent Wheeler phy webpag- from accessed in which data soft- drive sophisticated also used examiner The automatically are files es, including images, encrypted of find a number to ware tempo- files some of were hard drive. copied Jordan stored. on Buchanan’s nine direc- buried files from rary password-protected folder internet of multi- day, creation deep The next computer. tories to his computer further The examiner added ple been subdirectories. files had that more Jordan saw called program, encryption found folder. internet temporary to Buchanan’s Af- files. Scramdisk, disguise designed nude, images of were these files of Some the hard drive sweep of thorough a ter noticed Jordan children. prepubescent the exam- programs, software with various as and deleted being added were that files 3,000 images pornographic over iner found graph- A number viewed the folder. he drive, more than including hard on the names sexually explicit were ic files with old years to 15 from 3 children images of showing that automatically downloaded — conduct, each sexually explicit engaged or web- viewing webpage a was someone password-protect- was hidden of which the in- images on containing these pages ed. several minutes span ternet —over charged four Jordan indictment computer superseding session. A single during a attempted receipt files, including of. both counts separate copied some under 18 of child onto com- receipt pornography, adult child and 2252(b)(1) 2252(a)(2) and §§ over to law U.S.C. later turned —one that was pact disc images larger the four for each of count officials. enforcement provided by Jordan. from the A CD fifth districtcourt denied Buchanan’smotion quash indictment, Buchanan with charged possession count we review of child pornography under 18 ruling U.S.C. novo.5Buchanan maintains de 2252(a)(4)(A) based on images eleven lege the indictment does not al found on Buchanan’s hard drive. thefour was trial, Following jury Buchanan separate was resultof four He transactions. convicted all five counts and sentenced also contendsthat the four wеre prison to 71 months for each of the first automatically downloaded four counts and 60 months for the fifth using temporary ternet he into in- count, all to be served concurrently. Bu- viewing folderswhile he was images of chanan was also special assessed $100 same, adults containedon webpa $5,000 assessment for each count and a ge. fine&emdash;$5,500 total. appeals both his convictions and sentence. against grounded The rule multiplicityis prohibition the Fifth Amendment’s against II jeopardy, pre- intending double “to vent argues the convic multiplepunishments *5 the sameact.”6 for tions for of child pornography in ‘[t]he determining We haveheld that “ test counts one four of the superceding sameact or transaction whether indictment multiplicitous. are Convictions constitutes two offensesor are multiplicitous prosecution when the statutory is whether convictionunder each one charges single “a offense in more than one provision requires proof an additional count.”3 The superseding indictment al We fact whichthe otherdoes not.’ ”7 leged that Buchanan knowingly had re said, multipart have a tion ceived attempted and to receive one “Where or transac- prospect multiplicity raisesthe more visual depictions of minors der engaging un- single question in sexually explicit by conduct a statute, means of a ‘whether becomes separate prohibited internet, and the and the indict distinct acts, ment then punishable listed the four counts in a table by law, been committed.’ made have ‘the When with information about images, four as fol jury ”8 “ allowed is multiplicious lows:_ returnconvictionson counts, remedy Image Count tencing, Description to remandfor resen- is government dismissing 1 andy&emdash;l[l].jpg[omitted]4 with because count(s) multiplicity’ createdthe ” 2 ll[l].jpg hard [omitted] ‘[t]he danger multiplicious “ chief raised a 3_matt[l].jpg_[omitted] possibility is indictment 4Boyshard4[l].jpg [omitted] 3. the defendant receive will more than 6. Torre, 792, 3. UnitedStates DeLa F.2d 6. Id.at 729. 634 794 (5th ).Cir.1981 Reedy, (5th 7. UnitedStates v. F.3d 363 304 description image
4. The
thecontentof
each
of
issue
Ngu
Cir.2002)
(quoting
yen,
States v.
United
essary
notat
has
beenomittedas
unnec-
(5th
.1994)
F.3d
).
482
28
Cir
ourdecision. Kimbrough,
(quoting
Shaid,
5. UnitedStates v.
F.3d
8. Id.at 363-64
States v.
69
(5th
5).
(5th
.199
84)).
Cir
F.2d
r.19
Ci
”9
than
for not more
imprisonment
tion was
offense.’
single
for a
sentence
one
prior
a
there has been
years,
unless
in counts
was convicted
crimes,
in which
for certain
conviction
viola
separate
of four
through four
one
imprisonment for
penalty
was
event
2252(a)(2),
pro
§
which
tions of 18 U.S.C.
not more than 30
years
than 5
not less
vides:
years.11
(a)
who—
Any person
multi-
addressed
specifically
have
We
at least two occa-
2252 on
plicity
Gallardo, a
defendant
sions.12
receives,
(2)
or distrib-
knowingly
counts of
under
2252 of four
convicted
utes,
depiction that has
any visual
defen-
pornography.13
child
mailing
mailed,
shipped or
or has been
been
envelopes
mailed three
to differ-
dant had
foreign
or
in interstate
transported
en-
at
time and a fourth
ent locations
one
commerce,
materi-
or which contains
charged
He was
velope on a later date.14
or so
have been mailed
als which
envelope.15
each
separate
count for
by any means
transported,
shipped or
the defendant asserted
appeal,
On
knowingly
by computer, or
including
the three en-
stemming
counts
from
three
depiction
reproduces
visual
time should
mailed at the same
velopes
foreign
in interstate or
distribution
count.16
reduced to
have been
mails, if—
through the
or
commerce
regarding
previous holding
Applying
(A)
visual de-
producing
of such
fraud,17
separate
we hеld that “each
mail
minor
the use of a
involves
piction
ship
transport
mail to
use of the
conduct;
sexually explicit
engaging
separate
should constitute
*6
trans-
it is the act
either
crime because
(B)
is of such
depiction
such visual
central
is the
shipping
or
porting
....10
conduct
“The number of
of this statute.”18
focus
is irrele-
offense,
envelope
in each
photographs
penalty
of the
At the time
determining
appropriate
vant” for
to violate this sec-
violating
attempting
or
777,
Galvan,
person
pornography, such
tion of child
F.2d
781
9. United States v.
949
impris-
(5th
1991)
title and
(quoting
v. Lem
fined under this
United States
shall be
Cir.
309,
Cir.1991)).
ons,
(5th
years
more
than 5
nor
F.2d
317
oned for not less
941
years.
than 30
2252(a)(2).
§
10. 18 U.S.C.
358,
Reedy, 304
States v.
F.3d
12. See United
2252(b)(1)
a
§
Prior to
2003
11. Id.
Gallardo,
(5th Cir.2002);
States v.
amendment,
provided:
this section
1990).
(5th Cir.
20.
Id.
United States v.
602
bach,
(5th Cir.2000)).
(S.D.Cal.1985)).
F.Supp.
30. Id. at 366.
States,
21. Id.
(citing
Bell v. United
349 U.S.
81, 84,
(1955)).
75 S.Ct.
35. Id. Id. at n. 6: Id. 365 precedents matically these that we downloaded to tem- light It is in of Buchanan’s and conclude examine the record before us porary internet folder due to the machina- government allege failed to or computer programs. tions of some prove regard through to counts one images The fact the four made the engaged four that Buchanan more than through larg- basis of counts one four were in violation of 18 one transaction U.S.C. images compact er than thumbnail on the contexts, § govern- 2252. As other disc to which some of tempo- mul- establishing ment bore the burden of tiple by charging proving sepa- counts rary internet file folders were copied receipts pornography.42 rate of child explained at trial. not The record was allege separate to indictment failed silent as to whether Buchanan would hаve images the four identified. had to have “clicked on” each of the four expert testimony Nor did the at larger images separately enlarge or other to them trial establish that Buchanan took more they or whether larger were on the web- images than one action to four receive the page itself. only We note that there is one made the basis of counts one four. copy large images of three of the on the only The evidence showed that when Bu- separate disc. There not a thumbnail chanan a webpage, visited his image for images these three on the disc. automatically images downloaded the on today sepa- We do not resolve whether a webpage computer’s temporary image rate mouse click on an to maximize differing internet folder. The times shown separate receipt its size would suffice аs a compact on the disc to which some of the pornography.44 of child temporary copied43 internet files were did not images establish had come us, Based on the gov- facts before webpages from different that Buchanan any proof ernment did not offer that Bu- navigat- had to take action other than chanan took more than one action to re- ing single to a webpage images for the ceive the four images that were the basis captured temporary be internet file 2252(a)(2). of his convictions under His folders. There was also uncontroverted multiplicitous. convictions were therefore testimony that the date and stamps time Buchanan has suffered both a financial on the copied necessarily files were not injury actual times that were auto- special because of the assessments ll[l].jpg hard 10:45 AM Hodges, 42. See United States v. 8/29/2002 F.2d mаtt[l].jpg 10:35 AM (5th Cir.1980) 8/29/2002 (holding 351-52 that under for Boyshard 4[l].jpg 10:38 AM 8/29/2002 922(h)(1), prohibited mer 18 U.S.C. which receiving felon from in interstate commerce Labean, 44. But see United States v. 56 M.J. firearm,” “any possession simultaneous or re (C.G.Ct.Crim.App.2001) (holding ceipt multiple charged can firearms be specifications that 25 based on the defen single government aas offense and that the maximizing pornog dant's of child must establish that a defendant "received the raphy contained on a website click at firearms different times or stored them in ing on the file names did not constitute an locations”); separate United States v. Rosen multiplication charges, unreasonable a mil (6th Cir.1976) (stat barger, 536 F.2d itary justice concept designed to serve as a ing that "it was the Government's burden to discretion, prosecutors' limitation which separate establish offenses under the stat *9 multiplicity, that court held was distinct from ute”). concept grounded jeopardy "a [and] double 43. The dates times shown on the disc for designed prevent multiple convictions and images the four were as follows: punishments”). andy l[l].jpg AM 10:33 8/29/2002 — district court erred in ad- contends that well as the other count45 as for each multiple consequences of for a denying his motion continuance verse collateral con- Buchanan’s four Thus analyze convictions.46 expert allow his to examine and victions for reverse the denial the hard drive. We will 2252(a)(2) vacated, and the § are under only of a continuance “when district single should reinstate district court court has abused its discretion and the according- count and resentence defendant can establish that he suffered ly. generally consid- prejudice.”50 serious We provid- er the reasons for continuance images that the number of We note ed to the district court.51 website is relevant received from detеrmining applicable Guidelines expert Buchanan claims that his was not ap range currently under the sentencing analyze sufficient time to the hard allowed involving An offense plicable Guidelines.47 drive, provide any but he does not evi- images gives than 150 at least 10 but fewer trial, support dence to this claim. Prior to enhancement, an offense to a 2-level rise represented Buchanan’s counsel fewer than 300 involving at least 150 but to ten hours to con- expert eight needed enhancement, an of in a 3-level results analysis, which the district court duct his images but involving at least 300 fense than following allowed voir dire. Other in a 4-level in than 600 results fewer conclusory ap- statement on Buchanan’s crease, in an images and 600 or results peal, nothing there is the record to If number of of 5 levels.48 increase indicate that the time afforded was insuffi- do not is such that the Guidelines argument cient. This is thus mеritless. them, the sentenc adequately account depart ing may upward court consider alleges further However, were the 2001 Guidelines
ure.49
insufficient
to sustain his
evidence was
sentencing
establishing
used in
Buchanan failed to
convictions. Because
they were in effect at the
range because
acquittal
move for
after
evidence
offense,
they
in a
of his
result
time
preserve
he did not
suffi
sentencing range
presented,
than the current
lower
chal
ciency
therefore view his
Guidelines.
issue. We
stringent “manifest
lenge under the more
Ill
standard,52 which
miscarriage
justice”
of evidence of
requires a record “devoid
convic
Buchanan also attacks his
so tenuous that
guilt
He
or the evidence
grounds.
[is]
a number of other
tions on
Jones,
430,
3013(a)(2) (2000)
v.
444 F.3d
(requiring
49. See United States
U.S.C.
45.
- U.S. -,
denied,
(5th Cir.),
felony
cert.
special assessment for each
con-
$100
(2006) (No.
viction).
L.Ed.2d 970
126 S.Ct.
05-11153).
States,
856, 864-65,
v. United
470 U.S.
46. Ball
Scott,
v.
48 F.3d
50. United States
the district court did not exclude
evi-
Buchanan contends that Ronald Crank’s
sought
dence that Buchanan
to introduce
testimony
proper scope
exceeded the
point,
argument
on this
is meritless.
testimony.
rebuttal
After the Government
complains
jury
Buchanan next
established that
the encrypted porno-
instructions. Buchanan concedes that his
graphic images
by using
were accessible
Avants,
433,
736,
(quoting
United States v.
55. Id. at
285 counsel, “Black,” both “that petitioner must show “Bronco” and passwords Crank, supervisor, performance testified counsel’s was deficient” Buchanan’s and a performance prejudiced a Bronco “that the deficient Buchanan owned testimony thus the defense.”58 truсk. Crank’s black to Buchanan. Bu- passwords
linked the
ordinarily
This court does not
re
that he was unable
complains
chanan
claims of ineffective assistance of
view
could
testimony and that he
rebut
appeal
on direct
unless the record
counsel
that other em-
by showing
so
have done
sufficiently developed to allow a fair
is
Bu-
vehicles.
also owned black
ployees
claim.59
evaluation of the merits of the
object
not
to Crank’s
chanan’s counsel did
is
preferred
method for such claims
exceeding
scope
of rebut-
testimony as
collateral review.60 Because the record
via
error, using the
tal,
plain
is for
so review
sufficiently developed, we will not
is not
as described above.
same standard
of coun
consider the ineffective assistance
discre
district court has broad
A
appeal.
claim on direct
sel
scope of rebuttal evi
tion to control the
dence,
regarding
decision
rebuttal
and its
IV
app
on
testimony
rarely
will
be disturbed
challenges
sentencing
Buchanan
several
challenged
have
Buchanan could
eal.56
enhancements,
the district court’s refusal
testimony
or
on cross-examination
Crank’s
acceptance
responsibility
to award an
evidence,57 but
by presenting surrebuttal
sentence,
reduction,
release
supervised
his
Moreover,
to do so.
Crank’s
he failed
super-
his
and the terms and conditions of
testimony
duplicative
of other evi
alleged er-
vised release. None of these
pass
connecting Buchanan to the
dence
court,
preserved
rors were
the district
facts, Buchanan
light
of these
words.
error.
plain
so the review is for
allowing
error
has not shown
testimony affected his substantial
Crank’s
argues that the enhance
correct
or that
the failure to
rights
sentence based on facts not
ment
his
fairness,
seriously affect the
error would
by jury
violated his Sixth Amend
found
judi
public reputation
integrity,
rights, citing
States v. Booke
ment
proceedings.
cial
Buchan
r.61 The district court sentenced
Because we are
trial counsel
an before Booker issued.
argues
counts,
vacating the first four
the issue
of counsel
provided ineffective assistance
regard
those counts. With
the en- moot as to
failing
to offer evidence
five, Buchanan failed to raise this
count
cryption software hidden on
court,
trial
and review is
the Win- matter
computer would not function with
under a
sentencing
error. While
system
plain
and that other
operating
dows 2000
facts,
other
mandatory
re-
scheme based
owned Broncos. To obtain
employees
conviction,
by jury
not found
prior
than a
of ineffective assistance
grounds
lief on
Sanchez,
1384,
F.3d
Lampaziаnie,
v.
251
F.2d
59. United States
56. United States v.
988
(5th Cir.1993).
519,
(5th Cir.2001).
1393
523
Alford,
F.2d
57. See United States v.
999
818
(2000).
28 U.S.C. 2255
See
,
(5th Cir.1993) (discussing the district
821
surrebuttal).
allow
court's discretion to
738,
L.Ed.2d
125 S.Ct.
160
61. 543 U.S.
(2005).
Washington,
U.S.
Strickland
S.Ct.
commit pornog- of child depiction sadomasochistic complains To the extent that hard drive was found on raphy ordered, as that the PSR was not amended of conduct as the same course part of required. not Rath- actual amendment is *13 pornography. child of conviction er, disputed court resolves when a district facts, any to attached to ruling is be he was en- contends that Buchanan also provided to the Bureau of copy of the PSR re- acceptance of titled to a reduction procedure employed This was Prisons.71 court’s the district sponsibility. While Thus, Buchanan has iden- in this case. not sentencing guidelines findings under the that this court can correct. tified error error, clear reviewed for generally are is enti- whether a defendant determination court Buchanan asserts the district acceptance of adjustmеnt for authority tled to an to include a term of was without great- reviewed with even responsibility is release in addition to incarcera- supervised initially pleaded Buchanan argument er deference.70 Buchanan’s is without tion. im- unambigu- § some of the same
guilty possessing to merit because 18 U.S.C. that, sentence, plea part trial. But this as of a ously later used states ages steadfastly may super- Buchanan include a term of district court was withdrawn imprisonment.”72 receive or release “after knowingly did not vised claimed he The district pornography. child possess challenges next the con Buchanan Bu- concluding did not err court imposed release supervised ditions of the with ac- conduct was inconsistent chanan’s restricting court internet by the district responsibility. ceptance of with children. The dis use and contact challenges next conclusion imposing has wide discretion fоr trict court (PSR) report that he presentencing conditions, in the it limited but is terms activity room with 13- to engaged chat requires which 18 U.S.C.
14-year-old girls. Buchanan further as- to the circumstances conditions be related defendant, officer failed to probation adequate serts of the offense and deterrence, after the district court protection public, amend the PSR Although he admits conditions ordered him to do so. treatment.73 The correctional increase his greater deprivation information did not “cannot involve sentence, prejudicial necessary it is reasonably he contends that liberty than is statutory goals.”74 as the Bureau of agencies such latter three because achieve the rely object supervised on the PSR. to the Prisons Buchanan did not court, in district so we conditions release contention that the PSR Buchanan’s plain error. review for It not merit. did inaccurate is without argues that the restriction sought that Buchanan unequivocally state overly harsh and access is young girls. against internet chat sessions or chatted with Paul, Brenes, 274 F.3d States v. 73. United 70. United States v. (5th Cir.2001). (5th Cir.2001). 32(i)(3)(C).
71. Fed.R.Crim.P. Id. at 165. 72. 18 U.S.C. 3583 Paul, In we held that a that Buchanan unnecessary. challenges DNA collection release, usage supervised on internet was reason as a condition of prohibition ably possession challenge ripe the offense of it related to is not for review because prevent speculative and the need to whether Buchanan will have condition, public.75 comply In with the protect particularly recidivism and Paul, light given the district court did not his contention that the Bureau of plain already commit error. Prisons has taken a DNA sam- ple.78 argues that the Buchanan also restric- unsupervised contact with against
tion ‡ ^ liberty. overly restrictive on his children is Pаul, upheld court even broader reasons, foregoing For the we VACATE contact with minors provision prohibiting convictions counts one places avoidance of fre- requiring through four and REMAND for resentenc- *14 by Considering minors.76 that quented ing in with opinion. accordance this Bu- photographs in this case in- many of the chanan’s conviction and sentence with re- in engaged children sexual conduct volved gard to count five are AFFIRMED. general approval adults and the of with Paul, in imposition
such a restriction the BENAVIDES, Judge, Circuit plain of the condition is not error. concurring: that imposition Buchanan contends the join opinion I in the of the Court and mental, psychiatric or psychological, write separately explain why further I programs supervision pro- under the of his government believe the satisfy did not its are moot bation officer because he has proof separate burden of as to receipt the already treatment that completed pro- the images question. of each of the four in To department appropriate. bation deemed sure, be internet crimes of this sort make is argument meritless because complicated prosecutions. Even famil-
the that prior PSR did not conclude concepts iar like actus reus and mens rea the counseling obviated need for future context, present can new in difficulties Rather, counseling while on release. analogies precedents our mail had undergone PSR states that he some fraud or Mann Act imperfect cases will be prior treatment and that due to at best. offense, the nature of the instant “counsel- many ways There are in which a defen- ing appropriate.” and treatment is might dant receive four “visual de- argues piction[s]” Buchanan also that the im from In simplest the web. position a provision of DNA collection example, single page he could visit a unlawful and that Bureau large of Prisons contains four all images, of which are unlawfully sample automatically has taken a DNA from displayed on the screen challenge prison him. This is a to a condi downloaded to his hard drive. such a ease, tion that through sepa must be asserted a we could debate whether the defen- following rate civil action exhaustion of dant had separate committed four acts of receiving administrative remedies.77 To the extent image, single individual or the Carmichael, Id. at 169-70. 77. United States v. (5th Cir.2003). 76. Id. at 165-66. id. at See 761-62. ease, however, In this we great skill. page. Our hold- receiving one web
act of not to do the same. are well situated that such a strongly suggests ing Reedy by conduct “bundled” his has defendant states, majority correctly As the website, imаge, individual rather than Bu- prove is to government’s burden conviction. single face a and should re- chanan took more than one action to however, a example, complicated In more Majority at images the four issue. ceive page that has might accompanying visit a web text. Op. at note defendant record, then we are images, combing After thumbnails of various proof exactly with insufficient what left those thumb- individually select some of Buchanan did to receive the four In that them on screen. enlarge nails to charged, for which he was and as result case, we focus on would classify we are unable to the defendant’s receipt of subsequent or the page, first act or four. We conduct as one criminal And what if the image, or both? each sure, example, if the defen- cannot be twice dur- image views the same defendant single website that had four dant visited many receipts is that? visit? How ing one it, if large images were one could various scenarios—and These individually.1 This is selected and received easily imagine others —demonstrate necessarily the former say not to is “knowing receipt conceptualizing act, criminal nor that the latter is via the internet depiction” visual necessarily than one. It falls to more *15 in complicated than it is cases much more panels future to decide these issues when with com- involving regular mail. Even presented by the rec- they adequately are what the defen- plete information about however, that if say, ord. “ It is to he knew at the time he dant did and what for a crime is the prosecution’ ‘unit of reus, it, the criminal behavior is categorizing physical did conduct of the actus defendant,” Reedy, 304 opinion Reedy illus- United States v. challenging. Our (5th is, Cir.2002), well, surely as it it F.3d difficulty this and handles trates knowledgeablе by way separate, ac- thing description of four closest to a 1. The were, all, regard many legal to the indi- defendant’s conduct with after tions. There question posed images comes from a vidual illegal images the defendant’s hard found on government’s counsel to one of the defense drive, questions were and defense counsel's exchange went as follows: witnesses. images It specific the four at issue. not as to Q. say whoever is look- So it’s fair to images entirely possible that those four is again, ing computer and, we’re as- at the — a result of a knowl- were received as actually suming didn’t see it’s Mike. You part edgeable on the of the defendant action right? computer, him at the is stamps, they the time rather than four. As for A. That’s correct. government's own value. The are of little Q. computer is obvious- Whoever is at the computer expert it uncontro- testified —and clicking clicking images then on ly stamps time do not necessar- verted—that the images, other is that correct? pictures ily were received. indicate when A. True. were, "you really shouldn't Her exact words Q. Fair statement? hang your dates and times.” Un- hat on file A. Fair statement. they fortunately government, have for the provides us with some idea about how This that, just is devoid of because the record done receiving selecting im- defendant was Buchan- of when or how other indication ages, exhibits introduced at as do some of the question. acquired the four trial, files and such as the list of downloaded images, specific proof as to the However, Without more stamps. this evidence their time separate convictions I do not see how the four proof de- hardly adequate constitutes question can stand. the four fendant received more about the need know thеn we defendant particular before
conduct of four convictions. can sustain we of the fact that Buchan- sure We can be § 2252. we do 18 U.S.C. What an violated once, he violated it is whether not know twice, Accordingly, agree I four times. that it multi- majority would be with the separate four convic- plicitous to sustain tions in this case. America,
UNITED STATES Plaintiff-Appellee, ARNOLD, Tremain Marcus Defendant-Appellant. Hobbs, Robert Lavelle Atty. Asst. U.S. Beaumont, TX, (argued), for U.S.
No. 05-40877. Wayne (argued), Bruce Conley, Cobb of Appeals, States Court Associates, Beaumont, TX, Schexnaider & *16 Fifth Circuit. for Arnold. April KING, JOLLY,
Before GARWOOD and Judges. Circuit JOLLY, E. GRADY Judge: Circuit case, previous opinion In a in this after convictions, affirming Arnold’s we ordered a limited remand to the district court with respect to the enhancement of his sentence Arnold, on Count One. United States v. (5th Cir.2006). We did so because the record inadequate determine whether Arnold had preju been statutory diced the Government’s cita pre-trial tion Sentencing error its En Notice, hancement which reflected the