[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_____________ JULY 7, 2011
JOHN LEY
CLERK
Nos. 09-15187 & 09-15188
_____________
D.C. Docket Nos. 04-00016-CR-T-26EAJ
& 09-00140-CR-T-26TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES JOSEPH McANDREW,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Middle District of Florida
____________
(July 7, 2011)
Before TJOFLAT, CARNES and HILL, Circuit Judges.
PER CURIAM:
James Joseph McAndrew was convicted of three counts of possession and
one count of receipt of child pornography. In a consolidated case, he was
convicted of violating the conditions of his supervised release. The district court
sentenced him above his applicable guideline range in both these cases. In this
consolidated appeal, he appeals his convictions and sentences.
I.
James Joseph McAndrew was charged in 2003 with two counts of
possession of child pornography and one count of being a felon in possession of a
firearm. He pled guilty to one count of possession of child pornography and to the
firearm possession count and was sentenced to 57 months of imprisonment, to be
followed by three years of supervised release, during which time he was prohibited
from possessing a computer with internet access without written approval from his
probation officer and he was subject to search of his residence based upon
reasonable suspicion.
McAndrew began serving his supervised release on January 3, 2008. In
December of 2008, the probation department searched McAndrew’s residence.
Child pornography was found on computers, VHS tapes, floppy disks and compact
discs.
McAndrew was indicted and charged with three counts of possessing child
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pornography and one count of receiving child pornography.1 Specifically, Count 2
charged computer possession of child pornography, Count 3 charged possession of
videotaped child pornography, Count 4 charged possession of floppy and compact
discs, and Count 5 charged receipt of child pornography. In a separate case, he
was charged with violation of the terms of his supervised release.
Pursuant to a written plea agreement, McAndrew pleaded guilty to the child
pornography charges in the substantive case in exchange for the government’s
promise to recommend that he be sentenced within the applicable guideline range,
as determined by the court. The plea agreement recited that a forensic
examination of a laptop computer revealed that McAndrew began downloading
new images of child pornography just months after he was released from prison in
2008. A probation officer who reviewed the computer discs and VHS tapes
determined that they contained images that were in existence at the time of the
2003 charges, but that many of the images on these media were viewed shortly
after McAndrew’s release from prison. The plea agreement, however, did not
specify which images and media related to any of the counts in the indictment,
including the count charging receipt of child pornography. In fact, there was no
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Count 1 of the indictment charged that he induced a minor to engage in sexually explicit
conduct for the purpose of videotaping it, but the government dropped this count as a result of
the plea agreement.
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information in the factual basis regarding the receipt of child pornography except
that McAndrew “began downloading new images of child pornography several
months after he was released from prison.”
At the change-of-plea hearing, the district court informed McAndrew that
by pleading guilty to the child pornography charges he would also be admitting
that he violated the terms and conditions of his supervised release in his related
revocation case.
McAndrew was convicted and sentenced on the child pornography charges
and the violation of his supervised release. He challenges these two convictions
and sentences in this consolidated appeal.
As to the substantive child pornography conviction, he argues that the
government breached its plea agreement with him by recommending an above-
guidelines sentence. He also asserts that his convictions on Counts 2, 3 and 4 of
the indictment for possession of child pornography are lesser included offenses in
his conviction on Count 5 for receipt of child pornography, and thus, violate his
constitutional protection against double jeopardy.
In the revocation case, he argues that his 24-month above-guidelines
sentence must be vacated because the district court failed to permit him to fully
articulate his objections after it pronounced the sentence; exhibited pervasive
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judicial bias and hostility towards him sufficient to violate his right to due process
of law; and imposed a sentence that was unreasonable.
We shall consider each of the cases on appeal separately.
II.
1. The Child Pornography Convictions
A. The Alleged Breach of the Plea Agreement
McAndrew pleaded guilty to three counts of possession of child
pornography (Counts 2, 3 and 4 of the indictment) and to one count of receipt of
child pornography (Count 5) in exchange for the government’s promise to
recommend a sentence within the applicable guidelines range.
The PSI grouped Counts 2-5 into a single offense for purposes of the
guidelines calculation. It calculated a base offense level of 22 pursuant to
U.S.S.G. § 2G2.2(a)(2). McAndrew was assigned the following specific offense
characteristics: (1) a 2-level reduction because he did not intend to distribute the
child pornography; (2) a 2-level enhancement because the child pornography
involved minors under the age of 12; (3) a 4-level enhancement because the child
pornography portrayed sadistic, masochistic, or violent conduct; (4) a 5-level
enhancement because McAndrew engaged in a pattern of sexual abuse or
exploitation of a minor; (5) a 2-level enhancement because the offense involved
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the use of a computer; and (6) a 5-level enhancement because the offense involved
over 600 images. He received a 3-level reduction for his acceptance of
responsibility. The PSI further calculated a criminal history category of III based
on McAndrew’s 2004 conviction and the fact that he committed the instant offense
while on supervised release and within two years following his release from
custody for the 2004 conviction. The PSI also noted McAndrew faced a statutory
minimum penalty of 10 years’ imprisonment on Counts 2-4, up to a maximum
penalty of 20 years. As to Count 5, McAndrew faced a statutory minimum penalty
of 15 years’ imprisonment, up to a maximum penalty of 40 years. The PSI also
noted that an upward departure may be warranted if the length of a pornographic
video is substantially more than five minutes.
The district court calculated the applicable guideline range as 210 to 262
months imprisonment on Counts 2-4. The government argued that McAndrew
was a sexual predator with no hope of changing and suggested that “the 262-
month maximum guideline sentence was appropriate.” The government, however,
urged more than once that the court send McAndrew to prison for the “rest of his
life.”
In response to the government’s arguments, McAndrew told the court that
the government was “running real close to breaching the plea agreement.” He
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concedes, however, that he did not object to the government’s alleged violation
nor accept the court’s offer to rescind the plea agreement.
After stating that it had considered the § 3553(a) factors and the applicable
guidelines range, and had heard from all the witnesses, the court initially
sentenced McAndrew to life imprisonment. When the government reminded the
court that such a sentence was not statutorily authorized, the court found that an
upward variance was warranted in view of the § 3553(a) factors. The court
sentenced McAndrew to twenty years each on Counts 2, 3 and 4 to run
concurrently, followed by a consecutive term of 40 years on Count 5, for a total of
60 years’ imprisonment. Thus, McAndrew was sentenced to 720 months
imprisonment, an above-guidelines sentence.
Because McAndrew concedes that he did not object to the government’s
references to a “life sentence” at the change-of-plea hearing, we may review his
claim that the government breached his plea agreement only for plain error.2
United States v. De La Gaza, 516 F.3d 1266, 1269 (11th Cir. 2008). As a result,
McAndrew cannot prevail on this claim unless he can show both error that is plain
and prejudice from that error. Id. He must demonstrate that, but for the
2
The concession was made at oral argument, as McAndrew does not address the
government’s plain error argument in his brief.
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government’s alleged breach of the plea agreement, he would have obtained a
“better result” than the sentence actually imposed. Id.
McAndrew cannot make this required showing. At sentencing, the district
court, which had sentenced McAndrew in his original child pornography case,
made clear that it considered McAndrew to be a recidivist of the worst sort. The
court stated that it did not think there was a more appropriate case than
McAndrew’s to impose a sentence in excess of the advisory guidelines range
because he was a child “predator” who had victimized his own nieces and
nephews as well as other children for extended periods of time and who had
returned to this criminal activity within one year of his release from prison. The
court further stated that it could not think of “a more heinous crime than the
exploitation of young children.” The fact that some of his victims were blood-
related “exacerbated” the situation. The court noted that, based upon the
testimony of a victim, it appeared that they would “never heal.” Finally, the court
observed that its original sentence clearly had not afforded adequate deterrence as
McAndrew had gone “back to his old ways” so soon after his release. The court
concluded that it needed to fashion a sentence that would protect the public,
especially children, from further crimes committed by McAndrew.
In imposing sentence, the district court stated for the record that it had
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considered the advisory guidelines range and the § 3553(a) factors, but had
concluded that an upward variance was required in this case because:
the only reasonable sentence in this case is to incarcerate him . . . for
the rest of his natural life, and that’s what I intend to do. To me,
that’s a reasonable sentence and promotes the statutory purposes of
sentencing as provided for by law.
Initially, the district court imposed a life sentence. After being reminded of
the statutory limitations on the sentence, the district court fashioned the 720-
month sentence that it believed achieved the appropriate result in this case.
It is clear from the district court’s statements at the change-of-plea hearing
that it believed an upward variance was warranted and that a sentence that
achieved incarceration for “the rest of his life” was appropriate for McAndrew.
There is no evidence in this record from which we can conclude that the court
would have imposed a lesser sentence had the government not urged it to fashion a
sentence that would imprison McAndrew “for the rest of his life.” A defendant
fails to meet his burden to show prejudice where, at best, it is uncertain whether
the government’s breach had an effect on the defendant’s sentence. Id. at 1270-
71.
Although we agree that the government’s performance at the change-of-plea
hearing ran counter to the spirit, if not the letter, of its agreement with McAndrew,
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we can find no evidence in this record that would carry McAndrew’s burden of
showing prejudice from this inartful performance. As a result, McAndrew’s
failure to object to the government’s performance at the change-of-plea hearing is
fatal to his claim for relief from it now.
B. The Alleged Double Jeopardy Violation
We have held that possession of child pornography is a lesser-included
offense of receipt of child pornography and a double jeopardy violation unless the
defendant “committed two distinct offenses, occurring on two different dates, in
breach of two different statutes.” United States v. Bobb, 577 F.3d 1366, 1371 (11th
Cir. 2009). In this case, McAndrew was convicted on Counts 2, 3 and 4 for
possession of child pornography from an unknown date to December 10, 2008.
He was convicted in Count 5 of receiving child pornography from an unknown
date to December 10, 2008. Therefore, unless the possession of child pornography
charged in Counts 2, 3 and 4 is different from the receipt of child pornography
charged in Count 5, the possession convictions are lesser included offenses of the
receipt conviction, thereby offending the Double Jeopardy Clause.
As an initial matter, the government concedes that McAndrew’s conviction
on Count 2 cannot be distinguished from his conviction on Count 5. Count 5
charges that, from an unknown date until December 10, 2008, McAndrew received
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“any” child pornography. The indictment does not refer to any specific media; on
the contrary, it sweeps broadly enough to include all types of child pornography
that he received. Count 2 charges McAndrew with possession of child
pornography on a computer. As possession of child pornography on a computer
is a lesser included offense of the receipt of any child pornography during the
same time frame, the government agrees with McAndrew that he cannot be
constitutionally convicted of both these counts.
As to Count 3, the government points out that the videotapes charged were
made by McAndrew himself, thereby negating the requirement of Count 5 that he
“receive” them. This contention is supported by the PSI and was not objected to
by McAndrew. McAndrew concedes that the PSI contains this support. Thus, we
find no double jeopardy violation as the possession of homemade pornographic
videotapes charged in Count 3 is not the same conduct as the receipt of any child
pornography charged in Count 5.
Count 4 charged the possession of floppy and compact discs. The facts
recited in the plea agreement reveal that these computer discs existed at the time of
McAndrew’s 2003 charges. The government attempts to distinguish these discs
from the pornography charged in Count 5 by claiming that Count 5 charges only
the receipt of child pornography that McAndrew downloaded to his computer after
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he was released from prison in 2008. This argument fails, however, because
Count 5, by its own terms, encompasses the receipt of any child pornography from
an unknown date until December 10, 2008, the same time period as Count 4.
Thus, by its own terms, Count 5 encompasses the conduct charged in Count 4. As
a result, McAndrew’s conviction on both Counts 4 and 5 implicates the Double
Jeopardy Clause.
McAndrew failed to raise this double jeopardy claim before the district
court. Nevertheless, under plain error review, we hold that the double jeopardy
violations with respect to the overlap between Counts 2, 4, and 5 is both plain and
cognizable as it “seriously affected the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Miller, 527 F.3d 54, 58-59, 70-74. (3d Cir.
2008). See also United States v. Davenport, 519 F.3d 940, 942, 947-48 (9th Cir.
2008).
The proper remedy for a double jeopardy violation is to remand the case to
the district court so that it may choose which counts to vacate. See United States
v. Ball, 470 U.S. 856, 864 (1985). Accordingly, we shall vacate the judgment in
this case and remand to the district court with instructions to vacate McAndrew’s
convictions and sentences on either Counts 2 and 4 or on Count 5.
2. The Revocation Case
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The court calculated a guidelines sentencing range of four to ten months for
the revocation case, but sentenced McAndrew to the statutory maximum of two
years on the revocation case, to run consecutively with his other sentences.
McAndrew claims that this sentence must be vacated because the district court
failed to permit him to fully articulate his objections after it pronounced the
sentence; exhibited pervasive judicial bias and hostility towards him sufficient to
violate his right to due process of law; and imposed a sentence that was
unreasonable. We have carefully reviewed these arguments in light of the record
in this case and find them to be without merit.
III.
In view of the foregoing, we vacate the judgment in this case and remand to
the district court for re-sentencing in accord with this opinion.
VACATED AND REMANDED FOR RESENTENCING.
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