United States v. Devon Sanders ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 18-2719 and 18-2994
_____________
UNITED STATES OF AMERICA
v.
DEVON E. SANDERS,
Appellant
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2:16-cr-00513-001)
District Court Judge: Honorable Lawrence F. Stengel
______________
Argued: September 24, 2019
______________
Before: McKEE, AMBRO, and ROTH, Circuit Judges
(Opinion filed: November 13, 2020)
Anna M. Durbin, Esq.
50 Rittenhouse Place
Ardmore, PA 19003
Peter Goldberger, Esq. (Argued)
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Appellant
Alison D. Kehner, Esq. (Argued)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Michelle Rotella, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
_______________________
OPINION*
_______________________
McKEE, Circuit Judge.
Appellant Devon Sanders pled guilty to receipt of child pornography in violation
of 18 U.S.C. § 2242(a)(2) and possession of child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B). Sanders presents three issues on appeal: (1) that his receipt and
possession charges should have merged for sentencing; (2) that the district court erred
when it found that probation was not available under 18 U.S.C. § 2252(a)(2), the
receiving child pornography statute; and (3) that the district court abused its discretion by
failing to disaggregate Sanders’ harm from the harm caused by the original acts of child
*
This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not
constitute binding precedent.
2
abuse when it ordered him to pay $91,049 in restitution.1 For the following reasons, we
will affirm the district court.2
The appellant correctly contends that the doctrine of merger is rooted in
protections against the same conduct receiving multiple punishments, which the Double
Jeopardy Clause prohibits.3 In United States v. Finley, we reiterated the rule that for
“multiple punishments to constitute a double jeopardy violation, the multiple charged
offenses must be the same in law and in fact.”4 Whether the offenses are the same in law
requires a court to consider if the statutory provision creates multiple offenses or one
offense provable in alternative ways.5 We expressly held in United States v. Miller that
possession of child pornography is a lesser-included offense of receiving the
pornographic material.6 Conversely, whether two charged offenses are the same in fact
requires the court to consider if the underlying conduct violates the statute more than
1
On Sanders’ first claim, we review whether the two counts of his indictment merged for
purposes of sentencing de novo as it presents a pure question of statutory construction
and constitutional law. United States v. Kennedy, 682 F.3d 244, 255 n.8 (3d Cir. 2012).
On Sanders’ second claim, that probation is an available sentence under 18 U.S.C. §
2252(b)(1), we review this statutory interpretation issue de novo. See, e.g., Stiver v.
Meko, 130 F.3d 574 (3d Cir. 1997). On Sanders’ final claim, we review the district
court’s restitution order for abuse of discretion. United States v. Quillen, 335 F.3d 219,
221 (3d Cir. 2003).
2
The district court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction over
this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 to review the sentence and
restitution order. See, e.g., United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006);
United States v. Stock, 728 F.3d 287, 291 (3d Cir. 2013).
3
Sanders Br. at 2 (framing the issue as whether “the district court [should] have granted
defendant Sanders’s motion to merge Counts One and Two, because they charged the
“same offense” under the Double Jeopardy Clause”).
4
726 F.3d 483, 495 (3d Cir. 2013) (emphasis in original).
5
Id. (citing United States v. Rigas, 605 F.3d 194, 207 (3d Cir. 2010) (en banc)).
6
527 F.3d 54, 71 (3d Cir. 2008) (citing Ball v. United States, 470 U.S. 856 (1985)).
3
once or only a single time.7 Here, Sanders’ receipt count was based on three images, and
the possession count covered thousands of images found later for which the government
could not charge receipt. Therefore, the district court correctly declined to merge the
charges for sentencing.
We need not reach the second issue of whether the district court erred when it
found that probation was not an available sentence under 18 U.S.C. § 2252(a)(2) as the
court clearly stated that it did not think that a probationary sentence was appropriate here.
App 201.
Finally, Sanders claims that the district court did not appropriately disaggregate
the harm that he caused to the victims from the harm caused by others in the distribution
chain, such as the producers and distributors of the images. In United States v. Paroline,
the Supreme Court laid out the considerations necessary to determine restitution awards
in child pornography cases.8 The court stated: “At a general level of abstraction, a court
must assess as best it can from available evidence the significance of the individual
defendant’s conduct in light of the broader causal process that produced the victim’s
losses.”9 It noted that “[t]his cannot be a precise mathematical inquiry and involves the
use of discretion and sound judgment.”10 It then listed “a variety of factors district courts
might consider in determining a proper amount of restitution,” noting that “it is neither
7
Finley, 726 F.3d at 495 (citing Rigas, 605 F.3d at 212).
8
572 U.S. 434 (2014).
9
Id. at 459 (considering how courts should appropriately determine restitution awards
under the statute).
10
Id.4
necessary nor appropriate to prescribe a precise algorithm for determining the proper
restitution amount at this point in the law’s development.”11 It warned that “[t]hese
factors need not be converted into a rigid formula. . . . They should rather serve as rough
guideposts for determining an amount that fits the offense.”12
The district court explicitly considered all of the Paroline factors, including the
factor of “whether the defendant had any connection to the initial production of the
images.” The Court of Appeals for the Eighth Circuit has noted that this factor accounts
for disaggregation of the harm caused by the initial abuse from the harm of later
possession.13 To the extent Paroline can be read to require a district court make specific
findings on disaggregation of the original harm from the harm caused by possession, the
district court explicitly reduced the award based on that factor. App. 31. Thus, the district
court did not abuse its discretion in setting the award here.
Accordingly, for the reasons stated above, we will affirm the judgment of
sentence.
11
Id. at 459–60.
12
Id. at 460.
13
United States v. Bordman, 895 F.3d 1048, 1058 (8th Cir. 2018), cert. denied, 139 S. Ct.
1618 (2019) (noting that Paroline accounted for disaggregation in the factor that asked
“whether the defendant had any connection to the initial production of the images”).
5