United States v. Planck

493 F.3d 501, 2007 U.S. App. LEXIS 17234, 2007 WL 2055483
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 19, 2007
Docket05-21040
StatusPublished
Cited by46 cases

This text of 493 F.3d 501 (United States v. Planck) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Planck, 493 F.3d 501, 2007 U.S. App. LEXIS 17234, 2007 WL 2055483 (5th Cir. 2007).

Opinions

RHESA HAWKINS BARKSDALE, Circuit Judge:

For his seven guilty-plea convictions concerning child pornography, John Anthony Planck challenges only his three possession convictions, contending the underlying counts are multiplicitious. Regarding his sentence, he challenges the imposition of a life term of supervised release. AFFIRMED.

I.

In 2003, United States Immigration and Customs Enforcement Agents were engaged in an online child-pornography investigation. Planck was identified as a computer user responsible for uploading child pornographic images onto a Government-monitored website. In August 2004, a search warrant was executed at his residence; a desktop computer, laptop computer, and 223 computer diskettes were seized.

The desktop computer contained 88 videos and still child-pornography photographs; the laptop computer, four still photographs; and the diskettes, thousands of images. In total, Planck’s computer data contained approximately 5,000 child-pornography images.

Planck was charged with four counts of distribution of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(B), 2252A(b)(l), and 2256; and three counts of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256. The possession counts were based on his having child pornography on his two computers and diskettes.

Planck moved to dismiss two of the possession counts on multiplicity grounds, contending he was being prosecuted three times for the same possession-of-child-pornography act. The Government responded that, although the counts arose under the same statutory provision, the device involved in each count (desktop computer, laptop computer, and diskettes), and the images in each of those devices, differed.

[503]*503The district court denied Planck’s motion. In August 2005, he pleaded guilty to all seven counts.

The November 2005 Presentence Investigation Report (PSR) recommended a base offense level of 32, based on the post-Booker advisory 2003 Sentencing Guidelines. The recommended advisory Guidelines range was 121 to 151 months imprisonment. Noting the Guidelines suggested a two to three year term, the PSR instead recommended the statutory maximum of a life term, for supervised release, pursuant to Guidelines § 5D1.2(c) (term of statutory release should not be less than any statutorily required minimum). Planck did not object to that recommendation.

In December 2005, adopting the recommendations in the PSR, the district court sentenced Planck, inter alia, to 121-months imprisonment on the distribution counts and 120-months on the possession counts, to be served concurrently. The court also imposed a life term of supervised release, in accordance with § 5D1.2(c). After imposition of sentence, Planck again objected to the possession counts on multiplicity grounds; he again did not object to the supervised release.

II.

A.

Planck first contends two of the three possession counts are multiplicitious and should be dismissed. Multiplicity claims are reviewed de novo. United States v. Brechtel, 997 F.2d 1108, 1112 (5th Cir.1993). The rule against multiplicitous prosecutions stems from the Fifth Amendment’s proscription against double jeopardy. E.g., United States v. Kimbrough, 69 F.3d 723, 729 (5th Cir.1995). The rule prevents the Government from charging a single offense in more than one count of an indictment. United States v. Heath, 970 F.2d 1397, 1401 (5th Cir.1992). “The chief danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense.” United States v. Swaim, 757 F.2d 1530,1537 (5th Cir.1985).

In deciding whether an indictment is multiplicitious, we look to “whether separate and distinct prohibited acts, made punishable by law, have been committed”. United States v. Shaid, 730 F.2d 225, 231 (5th Cir.1984) (quoting Bins v. United States, 331 F.2d 390, 393 (5th Cir.1964)). To do so, we must first determine the “allowable unit of prosecution”, see United States v. Reedy, 304 F.3d 358, 365 (5th Cir.2002) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952)), which is the actus reus of the defendant, United States v. Prestenbach, 230 F.3d 780, 783 (5th Cir.2000).

The issue at hand is a matter of first impression for our court. Therefore, we look to our precedent in analogous cases to guide our analysis. Section 2252A(a)(5)(B) proscribes “knowingly possessing] any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography _” Plank contends: despite the possession of child pornography in three different types of devices, his acts still constituted only a single violation of § 2252A(a)(5)(B), because he was found in possession of the images at the same time and place.

In support, Planck cites Prestenbach. There, the defendant was convicted on four counts for possessing four altered money orders in a bottle, in violation of 18 U.S.C. § 494, which made it a crime to “[knowingly] possess ... any such false, forged, altered, or counterfeited writing”. In Prestenbach, only a single act of possession was alleged. 230 F.3d at 783.

Our court reversed the conviction, holding: where “contraband is possessed at a [504]*504single place and time, there is a single act of possession and a single crime”. Id. “Keeping four altered money orders in a ... bottle is one action, and therefore one crime.” Id. at 784. Notably, however, Prestenbach also stated: had “the government proved separate acts leading to ... possession of the altered money orders, it [would be] ... a different case”. Id.

Statutes punishing the possession of firearms by felons lend similar support. Although 18 U.S.C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Coley
Air Force Court of Criminal Appeals, 2026
United States v. Casillas
Air Force Court of Criminal Appeals, 2025
Donaldson v. Lumpkin
W.D. Texas, 2024
United States v. Bopp
79 F.4th 567 (Fifth Circuit, 2023)
United States v. Willis
76 F.4th 467 (Fifth Circuit, 2023)
United States v. Naidoo
995 F.3d 367 (Fifth Circuit, 2021)
United States v. Vallare
Fifth Circuit, 2021
United States v. Cline
986 F.3d 873 (Fifth Circuit, 2021)
v. Bott
2020 CO 86 (Supreme Court of Colorado, 2020)
United States v. Juan Chilaca
909 F.3d 289 (Ninth Circuit, 2018)
United States v. Rafael Marroquin
884 F.3d 302 (Fifth Circuit, 2018)
United States v. Forrester
76 M.J. 479 (Court of Appeals for the Armed Forces, 2017)
United States v. Forrester
Navy-Marine Corps Court of Criminal Appeals, 2016
United States v. Mayra Godines-Alvarez
633 F. App'x 283 (Fifth Circuit, 2016)
United States v. Self
100 F. Supp. 3d 773 (D. Arizona, 2015)
United States v. Mark Woerner
709 F.3d 527 (Fifth Circuit, 2013)
United States v. Young
502 F. App'x 726 (Tenth Circuit, 2012)
United States v. Om Budha
495 F. App'x 452 (Fifth Circuit, 2012)
United States v. Chiaradio
684 F.3d 265 (First Circuit, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
493 F.3d 501, 2007 U.S. App. LEXIS 17234, 2007 WL 2055483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-planck-ca5-2007.