United States v. Ferrell Walker

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 10, 2021
• Docket: 18-15283
• Status: Unpublished

Opinion

USCA11 Case: 18-12256 Date Filed: 03/10/2021 Page: 1 of 14

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12256 Non-Argument Calendar ________________________

D.C. Docket No. 7:07-cr-00030-HL-TQL-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FERRELL WALKER,

Defendant-Appellant.

________________________

No. 18-15283 Non-Argument Calendar ________________________

D.C. Docket No. 7:17-cr-00034-HL-TQL-1

versus USCA11 Case: 18-12256 Date Filed: 03/10/2021 Page: 2 of 14

Appeals from the United States District Court for the Middle District of Georgia ________________________

(March 10, 2021)

Before MARTIN, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM:

Ferrell Walker was convicted for possessing child pornography in 2007.

After he violated the conditions of his supervised release by possessing child

pornography in 2017, his supervision was terminated and he was sentenced to 60

months’ imprisonment. He was also later tried and convicted for possessing that

same child pornography. In this consolidated appeal, Walker challenges both his

sentence for violating the conditions of his supervised release and his criminal

conviction. Walker argues that the revocation sentence is unconstitutional and the

government agrees.

As to his criminal conviction, Walker raises four arguments. First, he argues

that his prosecution for the same conduct that led to the revocation of his

supervised release violates the Double Jeopardy Clause. Second, he says there was

insufficient evidence to support his conviction for possession of child pornography.

2 USCA11 Case: 18-12256 Date Filed: 03/10/2021 Page: 3 of 14

Third, he says the district court abused its discretion in requiring that his two

sentences run consecutively. And finally, he says the district court improperly

admitted evidence of his prior offense.

We are unpersuaded by Walker’s challenges to his criminal prosecution and

therefore affirm his conviction and sentence. But we agree that Walker’s

revocation sentence violated the Ex Post Facto Clause and therefore vacate the

sentence imposed for his supervised release violation and remand for further

proceedings consistent with this opinion.

I.

In 2007, Walker pled guilty to possession of child pornography in violation

of 18 U.S.C. § 2252(a)(4)(B). Walker accessed this pornography digitally, on a

personal computer in 2005. His sentence for that conviction included a 25-year

term of supervised release, which he began serving in May 2014.

In September 2017, the government searched Walker’s home and found a

cellphone in his bedroom, inside a pillow case on his bed. Over one thousand child

pornography images were found on the cellphone. The phone also contained a

photograph of Walker’s driver license and a nude photograph that Walker had

taken of himself. The cellphone included a sexually explicit “chat” from a

messaging application in which the user of the phone sent a photo of Walker’s face

and of male genitalia.

3 USCA11 Case: 18-12256 Date Filed: 03/10/2021 Page: 4 of 14

In November 2017, Walker was arrested on a warrant for violations of his

conditions of supervision. That same month, a grand jury charged Walker with

possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), based

on those materials the government found on his cellphone that September.

In May 2018, the district court conducted a supervision revocation hearing.

The government presented evidence about the child pornography it found on

Walker’s cellphone as well as the evidence linking the phone to Walker. Walker

testified that he owned more than one cellphone and that the cellphone discovered

in his pillow case was used by multiple people. He denied accessing or viewing

any child pornography on the phone.

The district court found by a preponderance of the evidence that Walker

violated a number of conditions of his supervision, including by possession of

child pornography. Pursuant to 18 U.S.C. § 3583(k), the district court sentenced

Walker to a mandatory minimum term of 60 months’ imprisonment. Walker

objected to the district court’s reliance on § 3583(k). He argued that since the

child pornography offense underlying his term of supervision occurred before §

3583(k) was enacted, reliance upon it in sentencing him violated the Ex Post Facto

Clause of the Constitution.

In July 2018, Walker was tried before a jury on the 2017 incident of

possession of child pornography. Over two days, the jury heard testimony about

4 USCA11 Case: 18-12256 Date Filed: 03/10/2021 Page: 5 of 14

the cellphone the government found at Walker’s home, including that it contained

child pornography. The jury heard evidence indicating that Walker personally

accessed the phone. The evidence also included testimony that Walker admitted to

a law enforcement officer that he used this phone to search for pornography

featuring teens. The government admitted evidence of Walker’s 2007 conviction

for possession of child pornography as well.

But Walker also presented evidence that someone other than he may have

used the phone to access child pornography. During cross-examination,

government witnesses conceded that the cellphone had not been fingerprinted and

that it was not password protected. Walker testified there were several people who

were doing construction on his home at the time who regularly used the phone to

access social media websites and pornography, and to sell items online. But

Walker again testified he did not know there was any child pornography on the

phone and denied using the phone to view child pornography.

The jury nevertheless convicted Walker of possession of child pornography.

The district court sentenced Walker to 168 months’ imprisonment, to run

consecutively to his revocation sentence. Walker timely appealed both his

revocation judgment and his 2018 conviction and sentence.

5 USCA11 Case: 18-12256 Date Filed: 03/10/2021 Page: 6 of 14

II.

A. Walker’s revocation sentence violates the Ex Post Facto Clause.

We review de novo whether a conviction or sentence violates the Ex Post

Facto Clause. United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (per

curiam). That clause prohibits the government from retroactively applying a law

that “imposes additional punishment” for a crime than was provided for at the time

the crime was committed. United States v. W.B.H., 664 F.3d 848, 852 (11th Cir.

2011) (quotation marks omitted). The retroactive application of a law that “raises

the penalty” for violating conditions of supervised release violates the Ex Post

Facto Clause. Johnson v. United States, 529 U.S. 694, 699–701, 120 S. Ct. 1795,

1800–1801 (2000).

The conduct that led to Walker’s first child pornography conviction occurred

in 2005. At that time, the maximum sentence that could be imposed on Walker

upon revocation of supervised release was two years. 18 U.S.C. § 3583(e)(3)

(2003).1 One year later, Congress enacted the new provision that prescribed a

mandatory minimum five years’ imprisonment for people who are required to

register as a sex offender and who then commit one of a subset of offenses,

including possession of child pornography. Adam Walsh Child Protection and

1 Walker’s conviction was classified as a class C felony as it carried a maximum punishment of between 10 and 25 years of imprisonment. See 18 U.S.C. § 3559(a)(3) (2004); 18 U.S.C. § 2252 (b)(2) (2003). 6 USCA11 Case: 18-12256 Date Filed: 03/10/2021 Page: 7 of 14

Safety Act of 2006 (“Adam Walsh Act”), Pub. L. No. 109-248, § 141(e)(2), 120

Stat. 587, 603 (codified at 18 U.S.C. § 3583(k)). When Walker’s supervised

release was revoked in 2017, the district court sentenced him to the mandatory

minimum 60 months’ imprisonment prescribed by the Adam Walsh Act. Yet, the

conduct that triggered Walker’s eligibility for sentencing under 18 U.S.C. §

3583(k) occurred before the Adam Walsh Act was enacted and Walker was subject

to a lower penalty at that time. Therefore, as the government now concedes, his

revocation sentence violated the Ex Post Facto Clause. See W.B.H., 664 F.3d at

852. We therefore vacate Walker’s revocation sentence and remand for further

proceedings consistent with this opinion.2

B. Walker does not show plain error in his 2018 conviction for the same conduct that resulted in revocation of his supervised release.

Walker argues that because he had already been sentenced to a term of

imprisonment for his 2017 child pornography possession when his supervision was

revoked, his subsequent prosecution for that same conduct violated the Double

Jeopardy Clause. Ordinarily, we review de novo double jeopardy claims. United

States v. Campo, 840 F.3d 1249, 1267 (11th Cir. 2016). But when, as here, the

2 Because we are vacating Walker’s sentence on Ex Post Facto grounds, we need not address his other constitutional challenge to that sentence. And while we are aware that United States Sentencing Guideline § 7B1.3(f) calls for serving a sentence for supervised release violations consecutive to a term of imprisonment a defendant is serving, we do not address Walker’s argument on this topic because we will not pass on a sentence that has not yet been imposed. 7 USCA11 Case: 18-12256 Date Filed: 03/10/2021 Page: 8 of 14

defendant raises a double jeopardy claim for the first time on appeal, we review

only for plain error. Id. To succeed on plain error review, a defendant must show

an “error that is plain; that affects substantial rights; and that seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Holt, 777 F.3d 1234, 1261 (11th Cir. 2015) (quotation marks omitted). “A plain

error is an error that is obvious and is clear under current law,” which means that

there “can be no plain error where there is no precedent from the Supreme Court or

this Court directly resolving it.” United States v. Lange, 862 F.3d 1290, 1296

(11th Cir. 2017) (quotation marks omitted).

Ordinarily, a sentence resulting from the revocation of supervised release

does not raise double jeopardy issues. That is because the revocation is considered

punishment for the original offense conduct, not whatever conduct led to the

revocation. See Johnson, 529 U.S. at 701, 120 S. Ct. at 1801 (attributing

“postrevocation penalties to the original conviction.”).

However, revocation penalties imposed pursuant to 18 U.S.C. § 3583(k)

may indeed raise double jeopardy concerns. In United States v. Haymond, 588

U.S.__, 139 S. Ct. 2369 (2019), a fractured Supreme Court determined that

imposing a sentence under 18 U.S.C. § 3583(k) without empaneling a jury violated

a defendant’s right to a jury trial. Id. at 2378–79, id. at 2386 (Breyer, J.,

8 USCA11 Case: 18-12256 Date Filed: 03/10/2021 Page: 9 of 14

concurring). In his controlling concurrence, 3 Justice Breyer explained that this

provision operates “less like ordinary revocation and more like punishment for a

new offense, to which the jury right would typically attach.” Id. at 2386 (Breyer,

J., concurring). He pointed to three aspects of the provision that informed his

conclusion:

First, § 3583(k) applies only when a defendant commits a discrete set of federal criminal offenses specified in the statute. Second, § 3583(k) takes away the judge’s discretion to decide whether violation of a condition of supervised release should result in imprisonment and for how long. Third, § 3583(k) limits the judge’s discretion in a particular manner: by imposing a mandatory minimum term of imprisonment of “not less than 5 years” upon a judge’s finding that a defendant has “committed any” listed “criminal offense.”

Id. (alteration adopted). For these reasons, Justice Breyer concluded that § 3583(k)

“more closely resemble[s] the punishment of new criminal offenses, but without

granting a defendant the rights . . . that attend a new criminal prosecution.” Id. He

therefore joined the plurality in finding § 3583(k) unconstitutional as applied. Id.

3 “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as the position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 993 (1977) (quotation marks omitted). Justice Breyer’s concurrence is narrower than the plurality opinion because he does not “transplant the Apprendi line of cases to the supervised-release context.” Haymond, 139 S. Ct. at 2385 (Breyer, J., concurring). His concurrence is therefore controlling. See also United States v. Savarese, __ F. App’x __, 2021 WL 194147, at *3 (11th Cir. Jan. 20, 2021) (unpublished) (noting that Justice Breyer’s concurrence in Haymond is “binding”). 9 USCA11 Case: 18-12256 Date Filed: 03/10/2021 Page: 10 of 14

Walker argues that the same aspects of § 3583(k) that make it similar to

punishment for a new criminal offense for the purposes of the right to a jury trial

make it similar to punishment for a new criminal offense for the purposes of the

Double Jeopardy Clause. We note that the Tenth Circuit, in the opinion that the

Supreme Court took up in Haymond, noted that § 3583(k) may raise double

jeopardy concerns for the very reasons Walker raises. United States v. Haymond,

869 F.3d 1153, 1165 (10th Cir. 2017), vacated by 588 U.S.__, 139 S. Ct. 2369

(2019).

Walker’s problem is that he has failed to show a double jeopardy violation

that constitutes plain error. In this circuit, for error to be “plain” there must be

“precedent from the Supreme Court or this Court directly resolving it.” Lange, 862

F.3d at 1296 (quotation marks omitted). Neither the plurality opinion nor Justice

Breyer’s controlling concurrence in Haymond even mentions the potential double

jeopardy implications of their reasoning. See generally Haymond, 139 S. Ct. at

2371–86. While the reasoning of Justice Breyer’s concurrence may support

Walker’s argument, Haymond does not directly resolve the double jeopardy

question. Therefore, any error on this issue is not plain and we cannot find any

double jeopardy violation in this case.

10 USCA11 Case: 18-12256 Date Filed: 03/10/2021 Page: 11 of 14

C. Sufficient evidence supported Walker’s 2018 conviction for possessing child pornography.

We review de novo a challenge to the sufficiency of the evidence. United

States v. Moran, 778 F.3d 942, 958 (11th Cir. 2015). If, after reviewing the

evidence “in the light most favorable to the government” we find that “any rational

trier of fact could have reached a verdict of guilty,” we must affirm the verdict.

United States v. Wetherald, 636 F.3d 1315, 1320 (11th Cir. 2011). When we

review the sufficiency of the evidence, we do not usurp the jury’s role in resolving

conflicts in testimony, weighing the evidence, or drawing reasonable inferences.

Musacchio v. United States, 577 U.S.__, 136 S. Ct. 709, 715 (2016).

In order to prove a defendant possessed child pornography in violation of 18

U.S.C. § 2252(a)(4)(B), the government must show, beyond a reasonable doubt,

that a defendant “knowingly” possessed or accessed the material at issue. Walker

argues that the government failed to present sufficient evidence that he

“knowingly” possessed the child pornography it found on the cellphone in his

home. He points out that the phone was not password protected, that many people

used the phone, and that the government did not present any direct evidence as to

who downloaded the child pornography onto the phone.

In fact, the government presented ample evidence that Walker used the

phone. It contained a photo of his driver license and a nude photograph Walker

had taken of himself. The cellphone also included a sexually explicit “chat” from a 11 USCA11 Case: 18-12256 Date Filed: 03/10/2021 Page: 12 of 14

messaging application in which the user of the cellphone sent a photo of Walker’s

face and of male genitalia. The phone was found in a pillowcase in the bedroom of

Walker’s home. And Walker admitted to using the phone to search for

pornography that featured teens. The government also introduced evidence that

there were “numerous” images of child pornography on the phone. Given the

volume of child pornography on the phone and the numerous pieces of evidence

establishing that Walker used the phone, it was reasonable for the jury to find that

Walker knew there was child pornography on the phone that he possessed. We

therefore reject Walker’s sufficiency of the evidence challenge to his conviction.

D. The district court did not abuse its discretion in admitting evidence of Walker’s 2007 conviction.

We review the district court’s evidentiary rulings for abuse of discretion.

United States v. Woods, 684 F.3d 1045, 1062 n.17 (11th Cir. 2012) (per curiam).

Walker says the introduction of evidence of his 2007 conviction violated Federal

Rule of Evidence 404(b). That rule prohibits the admission of “evidence of other

crimes” unless the government can demonstrate “(1) a proper purpose for

introducing the evidence; (2) that the prior act occurred and that the defendant was

the actor; and (3) that the probative value of introducing the evidence outweighs

any prejudicial effect the evidence might have.” United States v. Cancelliere, 69

F.3d 1116, 1124 (11th Cir. 1995) (quotation marks omitted and alteration adopted).

12 USCA11 Case: 18-12256 Date Filed: 03/10/2021 Page: 13 of 14

One proper purpose is to prove “knowledge . . . or absence of mistake.” Id.

(quotation marks omitted).

Walker says the government did not have a proper purpose in introducing

evidence of his 2007 conviction because he did not raise an accident or mistake

defense. But the prior conviction was still relevant to whether Walker had

“knowingly” possessed or accessed the material at issue. 18 U.S.C.

§ 2252(a)(4)(B). Walker put this question into issue by disclaiming any

knowledge there was child pornography on the phone found in his home. The fact

that Walker had previously accessed and possessed a significant amount of digital

child pornography undermined the plausibility of his testimony that he was

unaware that the cellphone at issue in 2018 contained a significant amount of

digital child pornography.

Walker also says the 2007 conviction was more prejudicial than probative

and therefore failed on the third prong of admissibility under Rule 404(b). See

Cancelliere, 69 F.3d at 1124. But we see no abuse of discretion in the district

court’s decision to admit the evidence. The prior offense was very similar to the

one for which he was standing trial and Walker’s entire defense was to dispute the

government’s evidence of the knowledge requirement of 18 U.S.C. §

2252(a)(4)(B). The fact that he had a history of accessing child pornography

through digital means tended to rebut that defense.

13 USCA11 Case: 18-12256 Date Filed: 03/10/2021 Page: 14 of 14

Therefore, we VACATE Walker’s conviction Walker’s revocation sentence

and REMAND for further proceedings consistent with this opinion, and we

AFFIRM his 2018 conviction and sentence.