The opinion of the court was delivered by: Dearie, Chief Judge.
After trial, a jury convicted defendant Michael Pomarico of seven counts of knowingly receiving images of child pornography, in violation of Title 18 U.S.C. §2252A(a)(2)(B), and seven counts of knowingly possessing those same seven images, in violation of Title 18 U.S.C. §2252A(a)(5)(B). I imposed a sentence of 72 months on each of the seven receipt counts, to run concurrently, and dismissed the seven possession counts. This memorandum sets forth my reasoning.
I. The Double Jeopardy Question
As I expressed to the parties at the time of sentencing, I was concerned that imposing separate punishments for the receipt and possession counts, based on the undisputed facts in this case, was irreconcilable with Mr. Pomarico's double jeopardy protections. See ST at 6.*fn1 The proof, corresponding to the government's one-image-per-count theory, established that Mr. Pomarico had received, through the Internet, seven separate images of child pornography. The government did not offer separate proof that Mr. Pomarico possessed the same seven images-and understandably so, for having received the images, Mr. Pomarico necessarily possessed them.
Furthermore, as I remarked at sentencing, "[h]aving possessed [the images] in the manner in which came by them through the Internet, by any definition or any sense of the word [he] had to have received them." ST at 7. The legal question thus presented, and squarely addressed by the parties' submissions, was whether Mr. Pomarico's convictions for both receipt of child pornography (under section 2252A(a)(2)(B)) and possession of child pornography (under section 2252A(a)(5)(B)), violate the Double Jeopardy Clause when the conduct underlying the two offenses is identical.
At the time of sentencing, only two circuits had squarely confronted the issue on facts materially indistinguishable from those presented in this case. See United States v. Davenport, 519 F.3d 940 (9th Cir. 2008); United States v. Miller, 527 F.3d 54 (3d Cir. 2008). The Third and Ninth Circuits applied the same constitutional tests and reached the same conclusion: i.e., that the entry of separate convictions under 18 U.S.C. §2252A(a)(2) for receipt of child pornography and under 18 U.S.C. § 2252A(a)(5) for possession of the same images violates the Double Jeopardy Clause. Davenport, 519 F.3d at 942-47; Miller, 527 F.3d at 70-73.*fn2 The arguments advanced by the government in both cases were essentially the same, and indistinguishable from those advanced in this case. I chose to follow Davenport and Miller. See ST at 6.
Davenport and Miller continue to be the only appellate decisions on the question. They also continue to govern my view of the matter and, in their thoroughness, obviate the need for lengthy additional discussion.
Furthermore, although the Second Circuit has not yet squarely addressed the question as presented in this case, what the Circuit has had to say on the subject to date strongly suggests that I am prudent in allowing myself to be guided by Miller and Davenport. In both United States v. Irving, 554 F.3d 64 (2d Cir. 2009), and United States v. Anson, No. 07-0377, 2008 WL 4585338, 304 Fed. App'x 1 (2d Cir. Oct. 15, 2008), the Circuit was asked to consider whether convictions for both receipt and possession of child pornography violate the Double Jeopardy Clause, and in both cases the Court avoided squarely reaching the constitutional question, having concluded, instead, that the convictions for receipt and possession in those cases were, or at least could have been, based on different images. See Anson, 304 Fed. App'x at 4 ("With respect to the possible overlap of [the receipt and possession counts], nothing in the indictment indicates that the same image or images underlying the receipt charge (Count 3) must also underlie the possession charges (Counts 4 through 43)"); Irving, 554 F.3d at 79 (distinguishing Miller and Davenport, Court explains that, "given that the government introduced Irving's computer hard drive containing 76 images of child pornography, the effect of these instructions was to allow the jury to find Irving guilty of possessing child pornography based on any three of those 76 images and guilty of receiving child pornography based on any one of the 76 images, including 73 that were not needed for the return of a verdict of guilty on the possession count. If the jury's verdicts on counts 4 and 5 were based on different images, there was no double jeopardy violation in the entry of judgment on both counts.")
The rationale that proved dispositive in Anson and Irving strongly suggests that, where, as here, the receipt and possession counts are based on the same images-and, to be more exact, where, as here, the nature of the charges, jury instructions and proof allow for no other possible interpretation-Miller and Davenport are to be followed rather than distinguished. Furthermore, in the ongoing Polouizzi prosecution, in a decision issued subsequent to my sentencing of Mr. Pomarico, the Circuit expressed in dictum its endorsement of Miller and Davenport. See United States v. Polouizzi, 564 F.3d 142, 159 (2d Cir. 2009) ("we find the reasoning of Davenport and Miller persuasive").*fn3
The Supreme Court has spoken clearly on the subject of remedy in the circumstances presented here. Although it was constitutionally permissible for the government to have tried Mr. Pomarico on both the receipt and possession counts, and for me to have submitted both to the jury, see Ohio v. Johnson, 467 U.S. 493, 499-500 (1984), now that convictions have been returned on both crimes, the Constitution requires me "to exercise [my] discretion to vacate one of the [sets of] convictions." Ball v. United States, 470 U.S. 856, 861 (1985). Indeed, Ball makes clear that "the remedy of ordering one of the sentences to be served concurrently with the other" is not sufficient; the "separate conviction, apart from the concurrent sentence, has potential adverse consequences that cannot be ignored." Id. at 865. Accord Miller, 527 F.3d at 74 (remanding for district court, in its discretion, to vacate either the receipt or the possession conviction); Davenport, 519 F.3d at 947 (vacating and remanding with instructions that the district court "vacate Davenport's conviction on one of the two counts").
It was for these reasons that I vacated Mr. Pomarico's convictions on the seven possession counts (i.e., counts 8 through 14 of the indictment) and sentenced him on only the receipt counts.
II. The Appropriate Sentence on the Seven Receipt Counts
For a first time offender, the statutory minimum sentence for a conviction of receipt of child pornography under 18 U.S.C. § 2252A(a)(2) is five years. 18 U.S.C. § 2252A(b)(1). The single statutory sentence further provides, "but, if such person has a prior conviction" under certain enumerated provisions, the minimum term of incarceration is fifteen years. Id. The principal issue at sentencing was whether Mr. Pomarico's 2005 conviction for transporting obscene material in violation of 18 U.S.C. § 1462 subjected him to this recidivist enhancement.
I readily rejected one branch of Mr. Pomarico's argument and concluded that the subject matter of the underlying offense conduct would qualify the conviction as an enhancement- triggering predicate; the issue, however, was whether the conviction was ...