ADF Alliance Alert

A 9th Circuit panel has issued a ruling in United States v. Davenport, No. 06-30596 (9th Cir. March 20, 2008). Judge Gould wrote the majority opinion. It begins:

Winston Davenport appeals the district court’s denial of Davenport’s motion to withdraw his guilty plea and the sentence hat the district court imposed on him for one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). After the district court denied Davenport’s motion to withdraw his guilty plea, Davenport received a 78-month sentence of incarceration for each of the two counts, to be served concurrently, as well as concurrent life terms of supervised release for each count.

In this opinion we address whether Davenport’s conviction or both 18 U.S.C. § 2252A(a)(2), or receipt of child pornography, and 18 U.S.C. § 2252A(a)(5)(B), or possession of child pornography, offends double jeopardy when the conduct underlying both offenses is the same.1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we determine that Davenport’s simultaneous conviction for both receipt and possession of child pornography violates the Fifth Amendment’s prohibition on double jeopardy. We reverse and remand to the district court for further proceedings consistent with this opinion.

Dissenting Judge Graber wrote:

I respectfully dissent because, in my view, Congress clearly intended to authorize cumulative punishment for receipt of child pornography and possession of child pornography. I disagree with the majority for two independent reasons.

First, the majority creates a circuit split by announcing a new interpretation of the test first applied in Blockburger v. United
States, 284 U.S. 299 (1932). Second, the majority ignores Congress’ clear intent to authorize cumulative punishment for the crimes of receipt and possession.