Lots of action this week in the Circuit. It's been really busy, so I can't post on everything, but there are good posts on the Sixth Circuit blog:
www.circuit6.blogspot.com.
And here's more on the child-pornography double-jeopardy issue that follows up on Dudeck (September 14 post). The sentencing discussion also follows up a little on Bistline (January 14 post). United States v. Hutchinson, No. 10-4603 (6th Cir. Feb. 1, 2012) (unpublished). Panel of Judges Moore, Clay, and McKeague.
Background:
* 188-month sentence for CP receipt/possession/distribution.
* D had been trading CP on-line.
* 10,405 images + 61 videos.
* Guilty plea.
* Total OL 37. Crim hist category II. Range of 235 to 293 months.
* 240-month stat max.
* Sentencing ct found that reduced range of 151 to 188 was sufficient.
Issues:
* D took issue with application of number-of-images enhancement.
* D claimed his sentence violated double-jeopardy principles.
Court agreed on the double-jeopardy issue and vacated in part and remanded.
Discussion:
* D objected to the number-of-images enhancement.
* Even discounting the duplicate images, there were 9,382 images. That number was well over the 600 needed for the enhancement.
* The number-of-images enhancement does not violate separation of powers.
* Congress had a "uniquely active role" in crafting the CP GLs. Intent to deter and punish. Citation of Commission's History of the Child Pornography Guidelines from October 2009. Congress retained ultimate authority over fed sentencing despite delegation to Commission. This authority from earlier case law was binding on this panel.
* Double-jeopardy claims reviewed for plain error.
* Double-jeopardy violation b/c allegations in indictment supported by same conduct. The defendant "possessed only those materials he had already received via online trading." And "[t]he fact that he went on to distribute duplicates of some of those images does not mitigate the fact that the possession charge was a lesser-included offense of receipt." Separate and distinct conduct did not form the basis for each offense. There was plain error.
* The error was plain even though the district court decided the case before the definitive Sixth Circuit case was published. There was sufficiently analogous Supreme Court precedent at the time to make the error plain.
* While the sentences were to run concurrently, so the only practical difference based on the double jeopardy violation was the amount of the special assessment, the special assessment was enough to affect the D's substantial rights.
* Conviction for lesser included offense should be vacated.
* Also there could be a violation if 2252(a)(2) and 2252A(a)(2) convictions not based on different images. Remand for further fact-finding.
