United States v. Ehle

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0123p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-5389
v.
,
>
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Defendant-Appellant. -
DAVID EHLE,
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Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 08-00016-001—Charles R. Simpson III, District Judge.
Argued: October 12, 2010
Decided and Filed: May 12, 2011
Before: BATCHELDER, Chief Judge; KEITH and ROGERS, Circuit Judges.

_________________

COUNSEL
ARGUED: Frank W. Heft, Jr., OFFICE OF THE FEDERAL DEFENDER, Louisville,
Kentucky, for Appellant. Terry M. Cushing, ASSISTANT UNITED STATES
ATTORNEY, Louisville, Kentucky, for Appellee. ON BRIEF: Frank W. Heft, Jr.,
Scott T. Wendelsdorf, OFFICE OF THE FEDERAL DEFENDER, Louisville, Kentucky,
for Appellant. Terry M. Cushing, Monica Wheatley, Jo E. Lawless, ASSISTANT
UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellee.
_________________

OPINION
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ROGERS, Circuit Judge. Defendant Ehle was charged with one count of
“knowingly receiving” child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A)
and (b)(1), and one count of “knowingly possessing” the same child pornography, in
violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). Following a guilty plea to both

1
No. 09-5389 United States v. Ehle Page 2

crimes, he was sentenced to consecutive terms of imprisonment. Because the offense
of knowingly receiving child pornography includes all of the elements of the lesser-
included offense of possessing the same child pornography, and because Congress did
not explicitly require multiple punishments, there has been a violation of defendant’s
right not to be subjected to double jeopardy. It is therefore necessary to vacate the
judgment below.

Ehle’s indictment charged him with knowingly receiving child pornography in
violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1), knowingly possessing child
pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(b) and (b)(2), and two other
counts not relevant here. Ehle pleaded guilty to both charges. In his plea agreement,
Ehle stated that he “knowingly and voluntarily waives the right to contest or collaterally
attack his conviction and the resulting sentence pursuant to 28 U.S.C. § 2255 or
otherwise, including, but not limited to claims for ineffective assistance of counsel.”

However, at the plea hearing, both the Assistant United States Attorney and the
district court made clear that this waiver extended only to collateral attack. The AUSA
stated:

[Mr. Ehle] is not waiving his right to directly appeal imposition
of sentence in this case. Numbered paragraph 13 says that he is,
however, waiving his right to collaterally attack the conviction or
sentence at a later time under a habeas petition, under 28 USC 2255 or
otherwise, but we do want it to be clear that Mr. Ehle is not waiving his
right to a direct appeal from any sentence which would be imposed by
this court . . ..

In accepting the plea, the district court stated to defendant that “you’re not waiving your
right to make a direct appeal to the United States Court of Appeals for the Sixth Circuit
on the matter of the sentence imposed here.”

At sentencing, counsel for Ehle did not contest the PSR calculation of an
advisory Guidelines range of 360 months to life. He argued for a below-Guidelines-
range sentence of 240 months, and for running the sentences for “receiving” and
“possessing” child pornography concurrently. The Government argued for a Guidelines-
No. 09-5389 United States v. Ehle Page 3

range sentence of 360 months, which required running the “receiving” and “possessing”
sentences consecutively. This was because “knowingly receiving” child pornography
was subject to a maximum sentence of twenty years, while “knowingly possessing” child
pornography was subject to a maximum sentence of ten years. The district court adopted
the Government’s recommendation and sentenced Ehle to 240 months on the “receiving”
charge and 120 months on the “possessing” charge, running consecutively, for a total of
360 months.

Ehle on appeal relies on the Double Jeopardy Clause to challenge his 360-month
sentence. It was not clear from Ehle’s briefs whether he is challenging his double
convictions, or whether he is attempting to use the Double Jeopardy Clause to challenge
the consecutive sentences as unreasonable. At oral argument, Ehle’s counsel clarified
that he now argues that his convictions for both “knowingly receiving” and “knowingly
possessing” child pornography violate the Double Jeopardy Clause, and that this court
should remand for the district court to vacate one of the two convictions. Ehle also
argues in the alternative that his total sentence is greater than necessary to comply with
the purposes of 18 U.S.C. § 3553(a)(2).

We first reject a threshold waiver argument. The Government argues that Ehle
waived his double jeopardy argument, not by the provision in the plea agreement
waiving later collateral attack, but by his “knowing, voluntary, and counseled pleas of
guilty to the separate charges.” While the Supreme Court in United States v. Broce, 488
U.S. 563 (1989), upheld a waiver of double jeopardy rights where the double jeopardy
claim required consideration of evidence outside the original record, the Court explicitly
preserved its previous holding in Menna v. New York, 423 U.S. 61 (1975), that “a plea
of guilty to a charge does not waive a claim that—judged on its face—the charge is one
which the State may not constitutionally prosecute.” Broce, 488 U.S. at 575 (quoting
Menna, 423 U.S. at 63 n.2). In short, a guilty plea or plea agreement does not waive a
double jeopardy challenge to a charge where, judged from the face of the indictment and
the record existing at the time the plea was entered, the charge is one that the
government could not constitutionally prosecute under the Double Jeopardy Clause. See
No. 09-5389 United States v. Ehle Page 4

Broce, 488 U.S. at 575-76; Menna, 423 U.S. at 63 n.2; United States v. Smith, 532 F.3d
1125, 1127 (11th Cir. 2008); United States v. Garcia-Valenzuela, 232 F.3d 1003, 1007
n.2 (9th Cir. 2000); United States v. Ragland, 3 F. App’x 279, 284 n.3 (6th Cir. 2001);
United States v. Grant, 114 F.3d 323, 329 (1st Cir. 1997); Sellers v. Morris, 840 F.2d
352, 355 (6th Cir. 1988). As explained below, Ehle’s charges for “receiving” and
“possessing” the same child pornography are just such types of charges.

This rule is not limited to successive prosecutions, i.e., situations involving one
prosecution and conviction, a lapse of time, and then a separate prosecution and
conviction for the same criminal activity. On the contrary, the reasoning in Menna
logically applies just as well to simultaneous prosecutions on separate charges for the
same criminal conduct:

A guilty plea, therefore, simply renders irrelevant those constitutional
violations not logically inconsistent with the valid establishment of
factual guilt and which do not stand in the way of conviction if factual
guilt is validly established. Here, however, the claim is that the State
may not convict petitioner no matter how validly his factual guilt is
established. The guilty plea, therefore does not bar the claim. We do not
hold that a double jeopardy claim may never be waived. We simply hold
that a plea of guilty to a charge does not waive a claim that judged on its
face the charge is one which the State may not constitutionally prosecute.

Menna, 423 U.S. at 63 n.2. There is no logical basis for not applying this analysis to
simultaneous prosecutions. When the Supreme Court later distinguished Menna in
Broce, a case that also involved simultaneous proceedings, the Supreme Court found a
waiver not because the guilty pleas were simultaneous, but instead because of the
necessity of looking outside the original record. Cases from other circuits have
accordingly declined to find a double jeopardy waiver in simultaneous plea cases where
it was not necessary to look beyond the indictments to see whether the defendant
received multiple sentences for the same crime. See Smith, 532 F.3d at 1127-28; Grant,
114 F.3d at 328-29. The Eleventh Circuit in Smith relied on its prior holding in United
States v. Kaiser, 893 F.2d 1300, 1302 n.2 (11th Cir. 1990), which explicitly rejected a
limitation on Menna based on the fact of simultaneous prosecution.
No. 09-5389 United States v. Ehle Page 5

This court’s reasoning in United States v. Ragland, albeit unpublished, also
supports rejection of the waiver argument in this case. In Ragland, the defendant pled
guilty to two counts of perjury. Ragland, 3 F. App’x at 282. On appeal, the defendant
raised a double jeopardy challenge to these counts, arguing that they were multiplicitous.
Id. at 284. In briefing, the government argued that the defendant waived her double
jeopardy challenge by failing to raise it with the district court and by pleading guilty; the
government abandoned its waiver theory at oral argument. Id. at 284 n.3. Nonetheless,
we explained that the defendant did not waive the double jeopardy challenge, since the
court “permits review of those cases in which the multiplicity of charges is apparent in
the record and resulted in multiple sentences,” and because “the Supreme Court has
suggested and many circuits have found that guilty pleas do not waive double jeopardy
issues predicated on multiple punishments where, as here, the issues appear on the face
of the indictment and can be resolved without an additional evidentiary hearing.” Id.
(citing Broce, 488 U.S. at 575-76).

Waiver has accordingly not been shown and, moreover, it is not clear that we are
limited to plain error review. In Ragland, we went on to find that the double jeopardy
challenge was forfeited, rather than waived, and was subject to plain error review. Id.
We relied in Ragland on our application of plain error review in United States v.
Branham, 97 F.3d 835, 841-42 (6th Cir.1996), which held that a double jeopardy claim
premised on multiplicity of punishments was forfeited (not waived) when the claim had
not been raised with the trial court. In the present case, in contrast, Ehle at sentencing
made arguments that support a double jeopardy claim, although without explicitly
relying on the Double Jeopardy Clause. It is true that Ehle’s counsel did not object to
his convictions on both counts, but he did argue at sentencing against consecutive
sentences on the ground that there was really only one crime. He challenged the
“concept of how you can receive child pornography without possessing child
pornography. One is necessarily subsumed by the other.” Ehle’s counsel also stated, “I
still come back to my original argument, you cannot receive child pornography without
possessing it . . . this is essentially one criminal charge.” Defense counsel also argued
that Congress did not intend separate penalties when a defendant is charged with both
No. 09-5389 United States v. Ehle Page 6

receipt and possession. Id. at 15. In response the Government argued among other things
that someone could hypothetically receive pornography without possessing it. Id. at 9-
10. Consideration of the issue on appeal is therefore appropriate.

There is a double jeopardy violation in Ehle’s convictions for both receiving and
possessing the same child pornography. The Double Jeopardy Clause “protects against
multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711,
717 (1969). Under the test set forth in Blockburger v. United States, 284 U.S. 299
(1932), two statutes proscribe different offenses only if each provision requires proof of
a fact that the other does not. See Rutledge v. United States, 517 U.S. 292, 297 (1996);
Blockburger, 284 U.S. at 304. Applying this test, the two child-pornography statutes
under which Ehle was charged proscribe the same offense, since the possessing
provision does not requires proof of any fact that the receiving provision does not.
Convicting Ehle of both “knowingly receiving” child pornography, 18 U.S.C.
§§ 2252A(a)(2)(A),1 and “knowingly possessing” the same child pornography, 18 U.S.C.
§§ 2252A(a)(5)(B),2 therefore violated the Double Jeopardy Clause.

As a matter of plain meaning, one obviously cannot “receive” an item without
then also “possessing” that item, even if only for a moment. The Supreme Court used
the same reasoning in Ball v. United States, 470 U.S. 856 (1985). In Ball, the Supreme
Court considered a question analogous to that presented in the instant case: whether a
felon possessing a firearm may be convicted and concurrently sentenced under 18 U.S.C.
§ 922(h)(1) for receiving that firearm and under 18 U.S.C. § 1202(a)(1) for possessing

1
18 U.S.C. § 2252A(a)(2)(A) provides as follows:
Any person who knowingly receives . . . any child pornography that has been mailed,
or using any means or facility of interstate or foreign commerce shipped or transported
in or affecting interstate or foreign commerce by any means, including by computer . . .
shall be punished as provided in subsection (b).
2
18 U.S.C. § 2252A(a)(5)(B) provides as follows:
Any person who either knowingly possesses . . . any book, magazine, periodical, film,
videotape, computer disk, or any other material that contains an image of child
pornography that has been mailed, or shipped or transported using any means or facility
of interstate or foreign commerce or in or affecting interstate or foreign commerce by
any means, including by computer, or that was produced using materials that have been
mailed, or shipped or transported in or affecting interstate or foreign commerce by any
means, including by computer . . . shall be punished as provided in subsection (b).
No. 09-5389 United States v. Ehle Page 7

the same firearm. Id. at 857. The Court’s answer was “no.” “Applying this rule
[Blockburger] to the firearms statutes, it is clear that Congress did not intend to subject
felons to two convictions; proof of illegal receipt of a firearm necessarily includes proof
of illegal possession of that weapon.” Id. at 862. Based on Congressional intent derived
in part from legislative history, “possession” of a firearm was a lesser-included offense
of “receipt” of the same firearm, forbidding separate convictions under the two
provisions.

In short, we are persuaded that Congress had no intention of creating
duplicative punishment for one limited class of persons falling within the
overlap between the two Titles—convicted felons who receive firearms
and who, by definition, possess them. The independent but overlapping
statutes simply are not “directed to separate evils” under the
circumstances.

Id. at 863-64 (quoting Albernaz v. United States, 450 U.S. 333, 343 (1981)).

What was true in Ball about separate provisions for “receiving” and “possessing”
firearms is true in the instant case about separate provisions for “receiving” and
“possessing” child pornography. “Receiving” child pornography necessarily requires
one to “possess” that child pornography. There are no requirements for the “possessing”
offense that are not also contained in the “receiving” offense. Compare 18 U.S.C.
§ 2252A(a)(2)(A) with § 2252A(a)(5)(B). “Possessing” child pornography is a lesser-
included offense of “receiving” the same child pornography, meaning the two statutes
proscribe the same offense. Rutledge, 517 U.S. at 297.

Ehle’s two charges involved the same child pornography. Count One charged
Ehle with “knowingly receiving” child pornography “[i]n or about and between 2006 and
April 2007,” while Count Three charged Ehle with “knowingly possessing” child
pornography “[i]n or about April 2007.” As the government clarified at Ehle’s plea
hearing, the child pornography Ehle was charged with “possessing” “in or about April
2007” is the very same that he was charged with “receiving” “in or about and between
2006 and April 2007”:

MS. LAWLESS: Mr. Ehle signed a consent to search and
photograph form authorizing the search of his residence, as well as the
No. 09-5389 United States v. Ehle Page 8

seizure of those items. He also admitted that there was likely child
pornography on his computer . . . . He had admitted that he had
obtained the images of child pornography while using the internet during
the time frame of 2006, up to and including April of 2007, while living
in Louisville, Kentucky. That same day, on April 19th of 2007, the
officers conducted a search at the Ehle’s residence located in Louisville.
And pursuant to the consent, they took several items from Mr. Ehle’s
home, including his computer, his wife’s computer, a laptop computer,
and stacks of computer disks and VHS tapes . . . . A later forensic
analysis of the computers, as well as those disks, revealed the presence
of numerous images of child pornography. And that would be what we
intend to prove if the matter went to trial with regard to Counts 1 and 3
. . . . [Ehle] admitted to specifically Counts 1 and 3, how he acquired the
child pornography images and that he in fact possessed them.

(Emphasis added.) While Ehle apparently did not keep everything he downloaded “in
or about and between 2006 and April 2007” (the “receiving” charge), this does not
change the fact that, per the indictment, everything Ehle downloaded and kept during
this time frame was that found in his possession “in or about April 2007” (the
“possessing” charge). The government does not claim that the “receiving” and
“possessing” charges are based on completely different child pornography.

The Government’s brief makes several arguments in support of its contention that
“possessing” child pornography is not a lesser-included offense of “receiving” child
pornography, but these arguments are not persuasive. First, the Government suggests
that “possessing” is a lesser-included offense of “receiving” only where “possessing” is
“incidental” to “receiving.” Hence, where an individual “possessed” the child
pornography in question for a sufficient amount of time beyond that needed merely to
“receive” it, “possessing” would not be a lesser included offense of “receiving.” As Ehle
correctly points out, though, this approach would require a focus on a defendant’s
specific conduct, conflicting with the analytical approach of Blockburger, which instead
requires that the statutory provisions’ required elements be viewed in the abstract. See
Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975); United States v. Bobb, 577 F.3d
1366, 1372 (11th Cir. 2009); United States v. Miller, 527 F.3d 54, 72 (3d Cir. 2008).
Moreover, this approach would also require wholly subjective line-drawing to determine
when possession incidental to receiving morphs into possession independent of the
No. 09-5389 United States v. Ehle Page 9

reception. The Government suggests that possession without receipt would occur in the
case of retention of child pornography for weeks, months, or even years after receipt;
repeated viewing of the pornography; or electronically transferring the pornography to
different locations. But no standard is proposed for drawing such a line. The same
argument presumably would apply to receiving and possessing weapons, but appears not
even to have been contemplated by the Supreme Court in Ball.

The idea would be that possession of the same contraband over continuous
periods of time would support separate counts of possession, only the first of which
would be the same crime as receiving. Carried to its logical extreme, the idea would
permit possession of contraband for ten days (240 hours) to be charged as ten (or maybe
240) separate counts of possession. The policy underlying the Double Jeopardy Clause
clearly does not permit such parsing.

The Government tries to justify its “incidental possession” approach by analogy
to United States v. Gore, 154 F.3d 34 (2d Cir. 1998), which concerned dual convictions
under 21 U.S.C. § 841(a)(1) for “possessing a controlled substance” and “possessing a
controlled substance with the intent to distribute.” The analogy is misplaced, as Gore
involves two offenses that are by statutory construction distinct, but on the facts may be
the same conduct. That is the reverse of our case, which involves two offenses that by
statutory construction are the same, but the Government contends are somehow factually
distinct. The argument simply does not work in that direction.

Gore holds that, even assuming two statutes each contain elements not present
in the other, it is possible on certain facts that the two crimes are nonetheless the same
for double jeopardy purposes. In Gore, the defendant was convicted of both distributing
a controlled substance and possession with the intent to distribute that substance based
on evidence of the same single sale of heroin. Id. at 39. Gore held that “distributing a
controlled substance” and “possessing with intent to distribute the substance” facially
satisfy the Blockburger test, because each offense requires proof of a fact that the other
does not. Id. at 45. Notwithstanding this, the offenses merge into the same crime for
double jeopardy purposes “[w]here the evidence shows only that the defendant handed
over a packet of drugs. In that limited scenario, the convictions for both possession with
No. 09-5389 United States v. Ehle Page 10

intent and distribution will fail the Blockburger test because no longer does each offense
require proof of a fact that the other does not.” Id. at 46 (internal quotation marks and
citation omitted). Since that was the very scenario presented in Gore, the court held that
the dual convictions for distribution and possession with intent to distribute violated the
Double Jeopardy Clause. Id. at 44. The Government cites Gore to argue the reverse,
that even if the child pornography statutes facially state the same crime, so as to violate
Blockburger and result in double jeopardy, the specific facts of this case nonetheless
make the crimes distinct. But this is just as illogical as inferring from the statement that
“not all birds are robins” that “not all robins are birds.” The possibility that statutorily
distinct provisions may merge on certain facts simply does not suggest that statutorily
identical provisions may diverge on certain facts.

As “knowingly receiving” and “knowingly possessing” the same child
pornography proscribe the same offense, there is a rebuttable presumption that Congress
did not intend to impose two punishments for the offense. Rutledge, 517 U.S. at 297.
Following this presumption, convicting under both statutory provisions would violate
the Double Jeopardy clause. While the presumption may be rebutted by “a plainly
expressed contrary view on the part of Congress,” Garrett v. United States, 471 U.S.
773, 779 (1985), no such “plainly expressed contrary view” can be found on either the
face of the child-pornography statutes or in their legislative history. The Government
cites several portions of the statutes’ legislative history to argue that the prohibitions on
“knowingly receiving” and “knowingly possessing” child pornography are meant to
address different harms. See Pub. L. No. 104-208, 110 Stat. 3009-26 (1996); 136 CONG.
REC. S4729 (1990); 136 CONG. REC. S9029 (1990); 144 CONG. REC. S12262-65 (1998).
Similarly, the Government also notes that “knowingly receiving” child pornography
carries a mandatory minimum term, whereas “knowingly possessing” child pornography
carries no such mandatory minimum term. See 18 U.S.C. §§ 2252A(b)(1)-(2). This,
says the government, expresses Congress’s intent for “knowingly receiving” and
“knowingly possessing” child pornography to be subject to multiple punishments.

However, all this appears to indicate is that Congress viewed an individual’s
“knowingly possessing” child pornography as a separately punishable offense where the
No. 09-5389 United States v. Ehle Page 11

same individual had not also “knowingly received” the same child pornography. Indeed,
the legislative history of the 1990 amendments to the child pornography statutes, which
added the crime of “knowingly possessing” child pornography to a scheme that already
included “knowingly receiving” child pornography, indicates that the crime of
“knowingly possessing” child pornography was meant as a gap-filling provision,
targeting those who “possessed” child pornography without having also “received” the
same child pornography. Senator Thurmond stated, “Current law prohibits the knowing
transportation, distribution, receipt or reproduction of child pornography which has
traveled in interstate commerce. Those who simply possess or view this material are not
covered by current law. This legislation corrects this insufficiency.” 136 CONG. REC.
S4729 (1990). That being the case, it would in fact be contrary to Congressional intent
to convict an individual for both “knowingly receiving” and “knowingly possessing” the
same child pornography. This is true even though “knowingly receiving” carries a
mandatory minimum term while “knowingly possessing” does not. This may reflect
Congress’s determination that merely “knowingly possessing” certain child pornography
is less blameworthy than “knowingly receiving” (and along with it, “knowingly
possessing”) other child pornography. In other words, possessing is a lesser included
offense to receiving. The evidence simply does not “plainly express” any contrary view
on the part of Congress to provide separate punishment for “knowingly receiving” and
“knowingly possessing” the same child pornography. To the extent the matter is
considered doubtful, moreover, the rule of lenity cautions that such doubt be resolved
in Ehle’s favor. As the Supreme Court said in Albernaz v. United States, 450 U.S. 333,
342 (1981), the “policy of lenity means that the Court will not interpret a federal
criminal statute so as to increase the penalty that it places on an individual when such
an interpretation can be based on no more than a guess as to what Congress intended. . . .
[T]he ‘touchstone’ of the rule of lenity is statutory ambiguity.”

Convicting Ehle of both “knowingly receiving” and “knowingly possessing” the
same child pornography therefore violates the Double Jeopardy Clause. Decisions in
other circuits support this holding. The Third Circuit in Miller, 527 F.3d at 70-74,
looked at the same statutory provisions and similarly held that possession was a lesser
No. 09-5389 United States v. Ehle Page 12

included offense of receiving, and the court vacated convictions that were based on the
same child pornography. Over a dissent, the Ninth Circuit did the same in United States
v. Davenport, 519 F.3d 940, 943-47 (9th Cir. 2008), rejecting an argument that Congress
nonetheless intended multiple punishments. The Eleventh Circuit agreed with these
legal conclusions regarding the same two statutory provisions, but affirmed convictions
because they were based on different items of child pornography. Bobb, 577 F.3d at
1371-75. The Second Circuit did basically the same thing in United States v. Polouizzi,
564 F.3d 142, 158-59 (2d Cir. 2009), explicitly finding the reasoning of Davenport and
Miller to be persuasive. These decisions provide confirmation of our analysis.

Finally, we would reach the same conclusion even under a plain error analysis
if we were to conclude that the defendant did not adequately raise the foregoing
argument below. Plain error occurs where there is “(1) ‘error,’ (2) that is ‘plain,’ and
(3) that ‘affect[s] substantial rights.’ If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error, but only if (4) the error
‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’”
Johnson v. United States, 520 U.S. 461, 467 (1997). The foregoing analysis shows the
“error” in Ehle’s dual convictions. Moreover, the Supreme Court’s holding in Ball v.
United States—that dual convictions for possessing and receiving the same firearm
violate the Double Jeopardy clause—is sufficiently analogous to the instant matter such
that the constitutional error in Ehle’s two child-pornography convictions is quite “plain.”
Finally, the error “affected substantial rights” and “seriously affected the fairness,
integrity, or public reputation of the judicial proceedings.” As this court explained in an
earlier double jeopardy case, “[t]here can be no doubt that the district court erred by
letting stand [defendant’s] convictions and sentences on both Count One and Count
Three and that this error affects [defendant’s] substantial rights and undermines the
fairness and integrity of the judicial proceedings.” United States v. Garcia, No. 96-1073,
1997 WL 420557, at *10 (6th Cir. July 8, 1997). The Third and Ninth Circuits reached
the same conclusion when they undertook a plain error analysis of double jeopardy
challenges to the child-pornography statutes. See Davenport, 519 F.3d at 947; Miller,
527 F.3d at 73.
No. 09-5389 United States v. Ehle Page 13

The only constitutionally sufficient remedy in this case is to remand to the district
court for it to vacate one of the two convictions in its discretion. See Ball, 470 U.S. at
864-65; Miller, 527 F.3d at 74; Sellers, 840 F.2d at 355. Upholding the convictions and
running Ehle’s sentences concurrently rather than consecutively would be a legally
insufficient remedy. See Ball, 470 U.S. at 864-65.

In light of our holding, it is not necessary to reach Ehle’s alternative argument
that his total sentence of 360 months is substantively unreasonable. Our resolution,
moreover, does not impair Ehle’s plea agreement. Ehle still validly pleaded guilty to
“knowingly possessing” and “knowingly receiving” child pornography. He can only be
convicted, however, of one of the two charges.

We vacate the judgment of the district court and remand for the district court to
vacate one of Ehle’s two convictions, and resentence him on the other.