15‐3867‐cr
United States v. Powers
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2016
No. 15‐3867‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
HEATH POWERS,
Defendant‐ Appellant.
On Appeal from the United States District Court
for the Northern District of New York
ARGUED: NOVEMBER 9, 2016
DECIDED: NOVEMBER 21, 2016
Before: CABRANES, POOLER, and PARKER, Circuit Judges.
Defendant‐Appellant Heath Powers pleaded guilty to thirteen
counts of child‐pornography‐related offenses and now appeals his
judgment of conviction, challenging (1) the factual basis supporting
his plea as to one of the thirteen counts and (2) the reasonableness of
his 480‐month (40‐year) sentence of imprisonment. The Government
concedes that the District Court (Mae A. D’Agostino, Judge)
committed “plain error” by accepting Powers’s plea to the count
challenged on appeal and that Powers’s conviction as to that count
must be vacated, but argues that resentencing is unnecessary. We
disagree with the Government with respect to the appropriate
remedy. Because the error below was a so‐called “conviction error,”
de novo resentencing is required.
Accordingly, we REMAND the cause to the District Court
with instruction to vacate the erroneous count of conviction and for
de novo resentencing.
Judge Pooler concurs in the judgment and opinion of the Court
and files a concurring opinion.
MOLLY CORBETT (Lisa A. Peebles, on the
brief), Office of the Federal Public Defender
for the Northern District of New York,
Albany, NY.
STEVEN D. CLYMER (Gwendolyn E. Carroll,
on the brief), Assistant United States
2
Attorneys, for Richard S. Hartunian, United
States Attorney for the Northern District of
New York, Syracuse, NY.
PER CURIAM:
Defendant‐Appellant Heath Powers pleaded guilty to thirteen
counts of child‐pornography‐related offenses and now appeals his
judgment of conviction, challenging (1) the factual basis supporting
his plea as to one of the thirteen counts and (2) the reasonableness of
his 480‐month (forty‐year) sentence of imprisonment. The
Government concedes that the District Court (Mae A. D’Agostino,
Judge) committed “plain error” by accepting Powers’s plea to the
count challenged on appeal and that Powers’s conviction as to that
count must be vacated, but argues that resentencing is unnecessary.
We disagree with the Government with respect to the appropriate
remedy. Because the error below was a so‐called “conviction error,”
de novo resentencing is required.
Accordingly, we REMAND the cause to the District Court
with instruction to vacate the erroneous count of conviction and for
de novo resentencing.
BACKGROUND
While working as a babysitter, Powers took sexually explicit
photos of, and engaged in sexual acts involving, a seven‐year‐old girl
(“V‐1”). On August 4, 2014, Powers took four pornographic
3
photographs of V‐1. That same day, Powers connected with an
undercover FBI agent through an online site used to swap
pornographic pictures of children, and sent all four images to the
agent. On August 5, 2014, Powers took seven more photographs of V‐
1 and, on August 7, 2014, sent four of these seven to the same
undercover agent. One of the images in this second batch was
unique; unlike the other images of V‐1 (in either batch), it did not
focus on the child’s pubic area and instead “the child’s bare chest
[wa]s the focus of the image.” PSR ¶ 9(a).
On August 10, 2014, Powers was babysitting when law
enforcement agents executed a search warrant at the home of V‐1. In
the course of questioning, Powers admitted to taking sexually explicit
photographs of V‐1, to distributing them online, and to receiving
pornographic images of other children. Powers provided his iPhone
4 (and its passcode) to the agents, which revealed approximately 125
photographs of V‐1 as well as other pornographic photos of children.
In a search of Powers’ residence, agents found other electronic
devices that contained more child pornography.
The following month, a federal grand jury returned an
indictment charging Powers with eleven counts of production of
child pornography (Counts One through Eleven, or “the production
counts”), in violation of 18 U.S.C. § 2251(a), (e); one count of
distribution of child pornography (Count Twelve), in violation of 18
4
U.S.C. §§ 2252A(a)(1)(A) [sic]1 and (b)(1), and 2256(8)(A); and one
count of possession of child pornography (Count Thirteen), in
violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2), and 2256(8)(A.).
Although it is not necessarily apparent from the record on appeal
which image corresponded to which production count, the
Government submits in its appellate brief that Count Six had as its
factual basis the production of the “bare chest” image.
On June 2, 2015, Powers pleaded guilty to all counts in the
indictment without a plea agreement. On November 19, 2015, the
District Court sentenced Powers to a below‐Guidelines 480‐month
(forty‐year) term of imprisonment.2
DISCUSSION
The Government concedes that the District Court committed
“plain error” by allowing Powers to plead guilty to a count for which
there was no “factual basis for the plea.”3 Specifically, the image of V‐
As the parties agree, the indictment incorrectly cited the statutory
1
provision. It should have cited 18 U.S.C. § 2252A(a)(2)(A), not (a)(1)(A).
More specifically, the District Court sentenced Powers to 360 months on
2
each of the production counts, to run concurrently; 120 months on Count 12, to
run consecutively to the production counts; and 120 months on Count 13, to run
concurrently to Counts 1 through 12.
Fed. R. Crim. P. 11(b)(3). (“Before entering judgment on a guilty plea, the
3
court must determine that there is a factual basis for the plea.”)
5
1 that focused on her bare chest was not within the definition of
“sexually explicit conduct” prohibited by 18 U.S.C. § 2251(a), and
conduct relating to it cannot serve as a factual basis for a conviction
thereunder.4 We agree that Powers’s count of conviction related to
that image, but only that image, must therefore be vacated. The
principal issue on appeal is thus the appropriate remedy where only
part of a conviction is subsequently overturned.
Our opinion in United States v. Rigas, 583 F.3d 108 (2d Cir.
2009), aimed to settle that very question. Rigas sought to clarify
United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002), which had held
that the “default rule” to remedy a so‐called “conviction error”—as
distinct from a so‐called “sentencing error”—is de novo resentencing.
See Quintieri, 306 F.3d at 1228 & n.6. After considering Quintieri and
its progeny, Rigas explained that Quintieri had “created a rule, not a
guideline,” and to the extent it or prior cases were ambiguous, Rigas
4 18 U.S.C. § 2251 prohibits “employ[ing], us[ing], persuad[ing],
induc[ing], entic[ing], or coerc[ing] any minor to engage in . . . with the intent that
such minor engage in, any sexually explicit conduct for the purpose of producing
any visual depiction of such conduct or for the purpose of transmitting a live
visual depiction of such conduct . . . .” 18 U.S.C. § 2256(2)(A) defines “sexually
explicit conduct” to be “actual or simulated[] (i) sexual intercourse, including
genital‐genital, oral‐genital, anal‐genital, or oral‐anal, whether between persons of
the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or
masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any
person.”
6
“resolve[d] any ambiguity” in favor of de novo resentencing following
conviction errors. Rigas, 583 F.3d at 117‐19.
Subsequent characterizations of the rule in non‐precedential
summary orders and in passing dicta in published opinions have
remained somewhat ambiguous, however. One panel read Rigas,
albeit only in a summary order, as having established an essentially
uniform rule.5 Other panels, likewise in summary orders or in dicta,
have continued to use, at least as a matter of linguistics, the “default
rule” formulation of Quintieri when mentioning Rigas.6 Notably,
5 See United States v. Yepes‐Casas, 473 F. App’x 90, 90‐91 (2d Cir. 2012)
(“[T]his Circuit’s recent precedent is unequivocal: any ‘conviction error’ requires a
de novo re‐sentencing.”); see also United States v. Draper, 553 F.3d 174, 184 (2d Cir.
2009) (citing Quintieri and stating “because we are reversing the witness
retaliation convictions, de novo resentencing is required”).
6 See United States v. Weingarten, 713 F.3d 704, 711‐12 (2d Cir. 2013)
(describing Rigas, in part, as having held that “if the vacatur of a count of
conviction has altered the ‘factual mosaic related to’ the remaining counts” then
resentencing is required (emphasis added)); United States v. Desnoyers, 708 F.3d
378, 386–87 (2d Cir. 2013) (“Typically, the defendant is entitled to de novo
sentencing when the court of appeals reverses a conviction because a change in
the ‘constellation of offenses of conviction’ alters the ‘factual mosaic related to
those offenses.’” (quoting Rigas, 583 F.3d at 115) (emphasis added)); United States
v. Mends, 412 F. App’x 370, 375 (2d Cir. 2011) (“This circuit has adopted a ‘default
rule that resentencing is required where part of a conviction is reversed on
appeal.’” (quoting Rigas, 583 F.3d at 117)); United States v. Capoccia, 354 F. App’x
522, 523–24 (2d Cir. 2009) (summary order) (“Where a count of a conviction is
7
however, applications of the rule, be it characterized as “default” or
not, are almost entirely consistent. No case cited in footnote six
permitted a district judge, following partial vacatur of a conviction,
simply to enter an amended judgment.
Indeed, it appears that only one post‐Rigas case has allowed a
district judge to do so. See United States v. Moreno‐Montenegro, 553 F.
App’x 29, 31–32 (2d Cir. 2014). That summary order reasoned as
follows:
With respect to the appropriate remedy, Moreno‐
Montenegro requests a remand for de novo resentencing,
contending that vacating one of his convictions
“‘effectively undoes the entire knot of calculation’
underlying the original sentencing.” United States v.
Barresi, 361 F.3d 666, 672 (2d Cir. 2004) (quoting United
States v. Quintieri, 306 F.3d 1217, 1228 (2d Cir. 2002)). We
disagree. The two offenses here were considered
together throughout the proceedings below, and the
district court ultimately imposed identical concurrent
sentences for both counts. Moreover, as explained below,
we find no other error in the defendantʹs sentencing. In
overturned, the ordinary procedure is to remand for de novo resentencing.”
(emphasis added)); see also United States v. Malki, 718 F.3d 178, 182 (2d Cir. 2013)
(per curiam) (not citing Rigas and using the “default rule” formulation).
8
accordance with our practice in such circumstances, we
accordingly will remand with instructions for the district
court to vacate the conviction on one of the two counts
and to enter an amended judgment. See, e.g., United
States v. Miller, 116 F.3d 641, 685 (2d Cir. 1997).
Id. at 32 (emphasis added).
The Government relies heavily upon Moreno‐Montenegro
here—and, it appears, elsewhere7—in arguing that resentencing is
unnecessary. That reliance is misplaced. The “practice” identified in
Moreno‐Montenegro is appropriate only when the defendant has
already received, as his or her sentence on an upheld count of
conviction, a mandatory minimum sentence. Those were the
circumstances in Miller, to which Moreno‐Montenegro attributes “our
practice,” and in the other case upon which the Government here
relies, Burrell v. United States, 467 F.3d 160 (2d Cir. 2006).8 Such
7 In other cases, it appears, the government similarly relies on this case. See
Brief for United States, United States v. Rosario, 652 F. App’x 38 (2d Cir. 2016) (No.
15‐1305), 2015 WL 6777675, at *47‐48; Brief for United States, United States v.
Santiago, No. 14‐2203 (2d Cir. Feb. 22, 2016), 2016 WL 727005, at *38‐39; Brief for
United States, United States v. Palmer, No. 15‐3006 (D.C. Cir. Aug. 5, 2016), 2016
WL 4158243, at *27 n.12.
8 In fact, both cases involved the dismissal of a conspiracy count, under the
Double Jeopardy Clause, as a lesser‐included offense of engaging in a continuing
criminal enterprise (or “CCE”). See Miller, 116 F.3d at 651 (remanding solely for
9
circumstances—in which a district court’s amending its judgment of
conviction is, by force of law, “strictly ministerial”9—constitute the
only viable exception to the rule set forth in Rigas. And as a non‐
precedential summary order, Moreno‐Montenegro is without force to
suggest otherwise.
Here, Powers was not given a mandatory minimum sentence
for any of the twelve non‐deficient counts of conviction.
Accordingly, Rigas controls and de novo resentencing is required.10 In
light of that, we do not reach Powers’s challenge to the substantive
reasonableness of his current sentence.
dismissal of a conspiracy count where the defendant “was convicted on one count
of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. §§ 848(a)
and 848(b)(1)(A) (1994),” which mandated a life sentence); Burrell, 467 F.3d at 162
(“The record reveals that, at the time Burrell was sentenced, the Sentencing
Guidelines required the district court to impose a sentence of life imprisonment
for the CCE conviction alone regardless of Burrell’s conspiracy conviction given
his adjusted offense level of 44 on the CCE count.”). Perhaps for this reason,
Powers attempts to distinguish Moreno‐Montenegro as a Double Jeopardy Clause
case, but we find no principle of law or logic that would support treating a
conviction error that arises under the Double Jeopardy Clause as different from all
other conviction errors.
Burrell, 467 F.3d at 166 & n.4.
9
That process need not be overly cumbersome. See Desnoyers, 708 F.3d at
10
386–87; Rigas, 583 F.3d at 119‐21.
10
CONCLUSION
For the reasons stated above, we REMAND the cause to the
District Court with instruction to vacate the erroneous count of
conviction and for de novo resentencing.
11
1 POOLER, Circuit Judge:
2 While we express no view on the substantive reasonableness of Powers’
3 sentence, I write separately in order to call the district court’s attention to the
4 need to, as always, give appropriate weight to all of the Section 3553(a) factors on
5 de novo resentencing. See United States v. Dorvee, 616 F.3d 174, 183‐84 (2d Cir.
6 2010) (suggesting the district court gave too much weight to the ‘need to protect
7 the public’ factor in sentencing an individual for distribution of child
8 pornography where the court noted that an individual who repeatedly had sex
9 with a child would have faced a far more lenient sentence).
10 Accordingly, I respectfully concur.
1