United States v. Dudeck

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0266a.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 09-3231
v.
,
>
-
Defendant-Appellant. -
GARY J. DUDECK, JR.,
-
N

Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 08-00098-001—Donald C. Nugent, District Judge.
Decided and Filed: September 14, 2011
Before: KEITH, McKEAGUE, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL
ON BRIEF: John B. Gibbons, Cleveland, Ohio, for Appellant. Daniel R. Ranke,
ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. Gary
James Dudeck, Jr., Ashland, Kentucky, pro se.
_______________________

AMENDED OPINION
_______________________

KEITH, Circuit Judge. Defendant-Appellant Gary J. Dudeck, Jr. (“Dudeck”)
pled guilty to a three-count indictment charging him with receipt of visual depictions of
minors engaged in sexually explicit conduct, receipt and/or distribution of child
pornography, and possession of child pornography. The district court imposed
concurrent terms of imprisonment on each of the three counts charged in the indictment.
Dudeck appeals and asserts that double jeopardy precludes convictions for all three
counts. Dudeck also appeals his sentence and contends that the 120-month sentence he

1
No. 09-3231 United States v. Dudeck Page 2

received for each conviction was unreasonable and greater than necessary to comply
with 18 U.S.C. § 3553(a). Possession of child pornography under 18 U.S.C.
§ 2252A(a)(5)(B) is a lesser-included offense of receipt of child pornography under
18 U.S.C. § 2252A(a)(2)(A). It is unclear whether Dudeck’s two convictions under
18 U.S.C. §§ 2252(a)(2) and 2252A(a)(2)(A) were based on receiving the same images.
Nevertheless, it is possible that separate conduct or images underlie each of Dudeck’s
convictions. Therefore, the case is REMANDED for a determination by the district
court whether separate acts or conduct underlie Dudeck’s convictions for receipt and
possession as to each of the three convictions.

I. BACKGROUND

Following their investigation of a child pornography website, on April 19, 2007,
Federal Bureau of Investigation (“FBI”) agents interviewed Dudeck about his purchase
of a subscription to a child pornography website. Dudeck consented to a search of his
computer and admitted to downloading pornography and searching for images
containing the word “teen.” FBI agents viewed images containing child pornography
on Dudeck’s computer during their search, and they seized the computer. An
investigation concluded that between March 18, 2007 and April 19, 2007, Dudeck used
his home computer, connected to the internet, to download 958 images of child
pornography and depictions of real minors engaging in sexually explicit conduct. The
investigation revealed that Dudeck stored those images in a directory he created on his
computer. From April 6, 2007 to April 16, 2007, he also downloaded thirty-three videos
and stored them in the same directory. The images and videos included masturbation,
oral and vaginal intercourse on occasions with adult men and prepubescent females, and
oral and anal sexual intercourse between prepubescent males.

Dudeck was indicted by a Grand Jury on February 27, 2008. Count One of the
indictment charged Dudeck with knowing receipt by computer, of images and videos
containing depictions of real minors engaged in sexually explicit conduct, from about
March 18, 2007 through April 19, 2007, in violation of 18 U.S.C. § 2252(a)(2). Count
Two charged Dudeck with knowingly receiving and distributing child pornography from
No. 09-3231 United States v. Dudeck Page 3

about March 18, 2007 through April 19, 2007, in violation of 18 U.S.C.
§ 2252A(a)(2)(A). Count Three charged Dudeck with knowingly possessing a computer
that contained images of child pornography, on about April 19, 2007, in violation of
18 U.S.C. § 2252A(a)(5)(B). Dudeck signed a written plea agreement admitting to all
three counts of the indictment. The parties did not express an agreement as to
sentencing. The district court accepted Dudeck’s plea of guilty as to all three counts of
the indictment.

At Dudeck’s sentencing hearing, Dudeck sought an adjustment in his United
States Sentencing Guidelines offense level, asserting that as to the receipt and/or
distribution charge, Count Two, he did not distribute child pornography. The district
court sustained Dudeck’s objection and granted a two-level reduction in the Guidelines
offense level and found Dudeck’s Guidelines adjusted offense level to be 30, with a
criminal history category of I, resulting in a Guidelines sentencing range of 97 to 121
months’ imprisonment. The district court imposed concurrent terms of imprisonment
of 120 months as to each count.

II. ANALYSIS

Dudeck’s appeal to this court is predicated upon double jeopardy and the
purported unreasonableness and unnecessary length of the sentence he received.

A. Double Jeopardy

1) Standard of Review

Dudeck did not raise his double jeopardy claim before the district court, thus, this
Court reviews the double jeopardy claim for plain error. United States v. Branham,
97 F.3d 835, 842 (6th Cir. 1996). To establish plain error, the defendant must show that
there is “(1) error, (2) that is plain, and (3) that affects substantial rights.” Johnson v.
United States, 520 U.S. 461, 467 (1997) (citation and internal quotation marks omitted).
“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 affects the fairness, integrity,
No. 09-3231 United States v. Dudeck Page 4

or public reputation of judicial proceedings.” Id. (citations and internal quotation marks
omitted).

2) Discussion

The Double Jeopardy Clause in the Constitution precludes putting any person
twice “in jeopardy of life or limb” for the same offense. U.S. Const. amend. V. Thus,
a defendant cannot be punished for the same offense twice. “However, ‘a single
transaction can give rise to distinct offenses under separate statutes without violating the
Double Jeopardy Clause.’” United States v. DeCarlo, 434 F.3d 447, 454 (6th Cir. 2006)
(quoting Albernaz v. United States, 450 U.S. 333, 344 n.3 (1981)). When Congress has
authorized multiple punishments arising out of a single act, the Double Jeopardy Clause
merely prevents “the sentencing court from prescribing greater punishment than the
legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). If the legislative
history does not clearly reveal whether the legislature intended that multiple
punishments be imposed for the same conduct, the court applies the presumption that
multiple convictions contravene legislative intent. Id. at 366-67. In short, when two
statutes criminalize the same offense, absent a clear indication that multiple punishments
were contemplated by Congress, the Constitution’s Double Jeopardy Clause shields a
defendant from conviction and sentencing under both provisions. The Supreme Court
clarified its approach in Blockburger v. United States, 284 U.S. 299 (1932), where it
defined the applicable test as follows: “where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision requires proof of a fact
which the other does not.” Id. at 304. Thus, this Court must identify the proof necessary
to establish the statutory elements of each offense. Illinois v. Vitale, 447 U.S. 410, 416
(1980).

Here, Dudeck contends that his convictions for receiving visual depictions of
minors engaging in sexually explicit conduct in violation of § 2252(a)(2), receiving child
pornography in violation of § 2252A(a)(2)(A), and possessing child pornography in
violation of § 2252A(a)(5)(B) violated the Constitution’s prohibition on double jeopardy
No. 09-3231 United States v. Dudeck Page 5

in light of United States v. Schales, 546 F.3d 965 (9th Cir. 2008). Succinctly, Dudeck
asserts that he could not receive child pornography without also possessing it; and,
therefore, he was subjected to double jeopardy for being punished for receipt and
possession of the same child pornography upon his view that possession is a lesser-
included offense of receipt.

Pursuant to § 2252(a)(2)(A), it is a criminal offense if any person

knowingly receives, or distributes, any visual depiction using any means
or facility of interstate or foreign commerce or that has been mailed, or
has been shipped or transported in or affecting interstate or foreign
commerce, or which contains materials which have been mailed or so
shipped or transported, by any means including by computer . . . if . . .
the producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct.

Section 2252A(a)(2)(A) authorizes punishment for “any person who . . .
knowingly receives or distributes 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.”
Similarly, § 2252A(a)(5)(B) provides that it is illegal to “knowingly possess[] . . . 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
commerce by any means, including by computer . . . .” Thus, as Dudeck argues, if the
Government has proven that a person “knowingly receives” child pornography in
violation of § 2252A(a)(2)(A), it also follows that the Government has necessarily
proven that the person “knowingly possesses” child pornography in violation of
§ 2252A(a)(5)(B). Schales, 546 F.3d at 978; see Blockburger, 284 U.S. at 304.

The issue of whether conviction is permissible under both 18 U.S.C.
§ 2252A(a)(2)(A) and 18 U.S.C. § 2252(A)(a)(5)(B) for the same pornographic materials
has already been addressed by this court. In United States v. Ehle, this court held that
possession under § 2252(A)(a)(5)(b) is a lesser-included offense of receipt under
No. 09-3231 United States v. Dudeck Page 6

§ 2252A(a)(2)(A).1 640 F.3d 689, 698 (6th Cir. 2011). Foreclosing the arguments made
by the government here, it further held that each of the two provisions does not require
proof of a fact that the other does not; and, therefore, proscribes the same offense under
Blockburger. Id. Lastly, it discussed the legislative history of these provisions, noting
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.” Id. Therefore, it held that Congress has not
“plainly express[ed]” an intention to impose multiplicitous punishments for receipt and
possession of the same child pornography, id.; and, thus, punishment for both offenses
would be “greater punishment than the legislature intended,” in violation of the Double
Jeopardy Clause. Hunter, 459 U.S. at 366.

Indeed, other circuits have recognized that “[t]he jurisprudence concerning the
receipt and possession provisions of 18 U.S.C. § 2252 and the comparable provisions of
18 U.S.C. § 2252A often converges” since “[t]hese statutory provisions . . . [are]
materially identical.” Miller, 527 F.3d at 64 n.10 (internal quotation marks omitted).
However, they also recognize that the inquiry into whether an offense constitutes a
lesser-included offense is bound to the facts of the case. See Blockburger, 284 U.S. at
304; see generally United States v. Bryner, 392 F. App’x 68, 73-74 (3d Cir. 2010)
(recognizing that pursuant to Miller, 527 F.3d at 71-72, defendant’s convictions for both
receipt and possession of child pornography did not violate the Double Jeopardy Clause
since the defendant was charged with receiving 82 images of child pornography in count
one and possessing over 1000 images of child pornography in count two). In Schales,
the Ninth Circuit remanded the case back to the district court to vacate one of the
defendant’s convictions, after the court found that the Double Jeopardy Clause prevented
convictions for receiving material involving the sexual exploitation of minors in
violation of § 2252(a)(2) and for possessing material involving the sexual exploitation

1
Similarly, the Third, Eighth, and Eleventh Circuits have held that “possession of child
pornography in violation of § 2252A(a)(5)(B) is a lesser-included offense of receipt of child pornography
in violation of § 2252A(a)(2).” United States v. Miller, 527 F.3d 54, 72 (3d Cir. 2008); accord United
States v. Muhlenbruch, 634 F.3d 987, 1003-04 (8th Cir. 2011); United States v. Bobb, 577 F.3d 1366,
1373-75 (11th Cir. 2009).
No. 09-3231 United States v. Dudeck Page 7

of minors in violation of § 2252(a)(4)(B). 546 F.3d at 969. The court found that
possession was “a lesser-included offense of receipt”; and, therefore, on the facts
present, convictions could not be sustained for both. Id. at 978-80. The court noted that
the underlying acts were based on the same conduct but stated that no double jeopardy
violation would have occurred had the defendant been charged with receipt for
downloading proscribed images from the internet and separately charged with possessing
the same material, transferred to and stored in a different medium (e.g., on compact
discs). Id. at 980.

In Bobb, while the Eleventh Circuit found that possession of child pornography
was a lesser-included offense of receipt of child pornography, it nonetheless affirmed the
defendant’s convictions for both since it found that the indictment appropriately
contained conduct necessary to sustain two separate offenses. 577 F.3d at 1375 (noting
that defendant was charged with receiving seven videos and several picture files on
November 12, 2004, but separately charged with possessing more than 6,000 additional
picture files in August 2005); see generally United States v. Sturm, Nos. 09-1386/5022,
2011 U.S. App. LEXIS 6864, at *37 n.5 (10th Cir. Apr. 4, 2011) (en banc) (declining to
decide whether possession of child pornography in violation of § 2252A(a)(5)(B) is a
lesser-included offense of receipt of child pornography in violation of § 2252A(a)(2),
but affirming convictions for both since the defendant’s convictions were based upon
two distinct acts). Similarly, in United States v. Polouizzi, 564 F.3d 142, 158-59 (2d Cir.
2009), the Second Circuit found the reasoning of the Third and Ninth Circuits
persuasive, but nonetheless upheld convictions for both receipt and possession because
the defendant “was charged with possessing certain images of child pornography the
receipt of which do not form the basis for a separate receipt count.” Id. at 159. Because
the defendant was not charged with both in regards to at least a few files, “his possession
of those files [was] not merely incident to an act of receiving for which he already ha[d]
been punished.” Id.

The Seventh Circuit recently addressed a double jeopardy claim regarding
convictions for distribution of child pornography in violation of § 2252(a)(2) and
No. 09-3231 United States v. Dudeck Page 8

possession of child pornography in violation of § 2252(a)(4)(B). United States v.
Faulds, 612 F.3d 566 (7th Cir. 2010). There, the defendant asserted that Schales
necessitated that one of his convictions be vacated. The court noted that the defendant’s
convictions were based upon a jury finding that he distributed child pornography on July
16, 2006 and possessed that same child pornography and other materials constituting
child pornography a month later on August 18, 2006. Thus, the court held that Schales
was inapplicable and the defendant was not subjected to double jeopardy, since his two
convictions were based on different acts that occurred more than a month apart. Id. at
570-71.

These decisions collectively indicate that while possession of child pornography
is generally a lesser-included offense of receipt of child pornography, conviction under
both statutes is permissible if separate conduct is found to underlie the two offenses.
Here, the Government contends that separate conduct is present because Dudeck’s
convictions for receipt and distribution of child pornography were based upon his
intentional searches for child pornography including the word “teen,” and his views of
images and videos returned from said searches. The Government states that Dudeck’s
conviction for possession of child pornography was based upon the 983 downloaded
images and thirty-three video files he had stored on his computer. Thus, the Government
contends that there is a temporal and substantive difference between the receipt and
possession counts such that no double jeopardy violation occurred.

The indictment and plea agreement fail to explicitly allege separate acts for each
count, separate dates for these actions, or separate illicit items as the basis for each
count. However, the presentence report contains more information, revealing the
possibility that there is more than one “act” here, and that identifiably separate conduct
can properly serve as the basis for each receipt conviction. It does not appear that
Dudeck simply pushed “download” and received all of the files at issue. Instead, he may
have possessed images that he did not “receive” during the time period alleged in the
indictment. He also downloaded images and then “stored them in a directory created by
[himself] in the Windows directory of his computer.”
No. 09-3231 United States v. Dudeck Page 9

We are unable to determine from the record before us whether, in fact, the
possession (§ 2252A(a)(5)(B)) and receipt (§ 2252A(a)(2)(A)) convictions rest upon
separate factual bases. This is because it is not clear from the face of the indictment or
other documents that both charges were based on the very same conduct, nor is it clear
they were based on different conduct. Since the inquiry into whether an offense is a
lesser-included charge is bound to the facts of the case, see Blockburger, 284 U.S. at
304, more fact-finding is needed and therefore remand is appropriate.

On remand, the district court should determine if the record reflects that receipt
and possession occurred on different dates (see Bobb, 577 F.3d at 1375); that after
receipt, possession was undertaken by transfer to a different medium (see Schales, 546
F.3d at 980); or that Dudeck was charged with possession of child pornography images
for which he was not also charged with receipt (see Polouizzi, 564 F.3d at 159); such that
separate punishment for receipt and possession is permissible. If Dudeck was charged
with receipt of any images for which he was not also charged with possession—and
vice-versa—the two can be punished as separate offenses. Bobb, 577 F.3d at 1375.

If it cannot be determined that separate and distinct conduct occurred for each
offense, this case is controlled by Ehle: conviction for both receipt and possession based
on the same images violates the Double Jeopardy Clause. See 640 F.3d at 698. In that
case, the district court shall vacate Dudeck’s conviction as to Count Two of the
indictment and resentence him in a manner consistent with this opinion. See DeCarlo,
434 F.3d at 457; cf. United States v. Avery, 128 F.3d 966, 972 (6th Cir. 1997) (noting
that in such instances, the offense with the lower punishment should be vacated, such
that the offense which remains results in higher punishment). Therefore, we REMAND
for further fact-finding by the district court.

This leaves Dudeck’s conviction for Count One, receiving visual depictions of
real minors engaged in sexually explicit conduct—more simply, receiving “real” child
pornography—in violation of § 2252(a)(2). Dudeck asserts that this conviction, when
coupled with his conviction for receiving child pornography in violation of
§ 2252A(a)(2) for the same conduct, also runs afoul of the Double Jeopardy Clause.
No. 09-3231 United States v. Dudeck Page 10

Whereas a § 2252(a)(2) violation arises only where the child pornography at issue
involves real minors engaged in sexually explicit conduct, a § 2252A(a)(2) violation
arises where the child pornography involves real minors or “virtual” minors—such as
digitally created or altered minors—engaged in sexually explicit conduct. See 18 U.S.C.
§ 2256(8) (defining “child pornography” as applied to § 2252A). The record before us
does not reflect whether Dudeck’s convictions under this count rested on his receiving
different types of images. Thus, we also REMAND this question to the district court for
further fact-finding.

B. Sentence Reasonableness

Since the district court may again conclude that all convictions stand, we proceed
to address Dudeck’s appeal of his sentence.

1) Standard of Review

A district court’s sentencing determination is reviewed for reasonableness “under
a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41
(2007). Review for reasonableness mandates that we ensure that the sentence was
procedurally and substantively sound. United States v. Sedore, 512 F.3d 819, 822 (6th
Cir. 2008) (citation omitted).

2) Discussion

Dudeck contends that the district court failed to meaningfully consider the
18 U.S.C. § 3553(a) factors, that his 120-month sentence was substantively unreasonable
and arbitrary, and that the district court considered the applicable Sentencing Guidelines
range to be mandatory. Dudeck further contends that the district court discarded the
§ 3553(a) factors.

The reasonableness of a sentence has “substantive and procedural components.”
Sedore, 512 F.3d at 822. “[I]f the district judge fails to consider the applicable
Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a),
and instead simply selects what the judge deems an appropriate sentence without such
No. 09-3231 United States v. Dudeck Page 11

required consideration,” the sentence imposed is procedurally unreasonable. Id. at 822-
23 (quoting United States v. Liou, 491 F.3d 334, 337 (6th Cir. 2007)). Additionally, “‘a
sentence may be substantively unreasonable where the district court selects the sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent
§ 3553(a) factors, or gives an unreasonable amount of weight to any pertinent factor.’”
Id. (same). Where a sentence is imposed within the appropriate Sentencing Guidelines
range, “[a] rebuttable presumption of substantive reasonableness applies.” Id.

Section 3553(a) provides that a court must “consider . . . the nature and
circumstances of the characteristics of the offense and the history and characteristics of
the defendant” when imposing a sentence, including

the need for the sentence imposed . . . to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment
for the offense; to afford adequate deterrence to criminal conduct; to
protect the public from further crimes of the defendant; and to provide
the defendant with needed . . . correctional treatment in the most effective
manner.

Section 3553(a) also provides that the sentencing court must consider the corresponding
sentencing range provided by the United States Sentencing Guidelines.

The district court pronounced a sentence of 120 months, which was within the
Guidelines sentencing range of 97-121 months. The district court heard evidence of
Dudeck’s extensive military service, virtually continuous work-record as a chef and lack
of prior criminal offenses. It also heard strong character references from neighbors and
relatives describing him as a family man, and listened to Dudeck’s own statement of
remorse. Victim impact statements from one of the children brutalized on the video clips
recovered from Dudeck’s computer and her parents were read before the court and a
psychiatrist’s opinion that Dudeck would not become a recidivist was also discussed.
The district court explicitly discarded the psychiatrist’s opinion since it found the
opinion based solely on Dudeck’s statement that he stumbled upon the child
pornography while searching for adult pornography rather than the evidence admitted
to by Dudeck that he actively searched and downloaded child pornography. The district
No. 09-3231 United States v. Dudeck Page 12

court also discussed its own knowledge of psychiatric reports of sexual offenders,
Dudeck’s acceptance of responsibility and adjusted offense level for lack of distribution,
and the high likelihood of recidivism of sexual offenders notwithstanding the lack of a
prior criminal history. The court further discussed reports finding that most viewers of
child pornography had also physically and sexually abused children and that the basis
for the child pornography laws took into account each of those facts and pieces of
evidence—extreme harm to children, recidivism, difficulty in discovering victims, etc.
The district court thus concluded “I think the guideline sentence is appropriate.”

Review of the record demonstrates that the district court’s sentence was neither
arbitrary nor absent consideration of the § 3553(a) factors. The sentence imposed was
not procedurally or substantively unreasonable. Therefore, should the district court
affirm convictions on all counts, the 120-month sentence was appropriately entered and
we AFFIRM. We also note that, should the district court instead vacate either or both
of the convictions for Counts Two and Three, the resulting guideline range, § 3553
factors, and underlying conduct would remain unchanged. The imposition of the same
120-month concurrent sentence is still possible.

III. CONCLUSION

For the aforementioned reasons, we REMAND to the district court for a
determination as to whether Counts One, Two and Three are supported by separate
conduct or images. Should the district court uphold all convictions, we further AFFIRM
the entry of the 120-month sentence. Otherwise the district court is instructed to vacate
one or both convictions for possession under Counts Two and/or Count Three and
resentence Dudeck accordingly.