Circuit Watcher

06-30596 U.S. v. Davenport
Before: William C. Canby, Jr., Susan P. Graber, and Ronald M. Gould, Circuit Judges.
GOULD, Circuit Judge: Winston Davenport appeals the district court’s denial of Davenport’s motion to withdraw his guilty plea and the sentence that 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.
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In this opinion we address whether Davenport’s conviction for 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. … U.S. v. Davenport.

1. Davenport’s other claims relating to the denial of his motion to withdraw his guilty plea and to his sentence are the subject of a separate, unpublished memorandum disposition filed contemporaneously with this opinion. [↩]