                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-15132         ELEVENTH CIRCUIT
                                                        JULY 21, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                           CLERK

                D. C. Docket No. 08-00060-CR-4-SPM-WCS-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

STEVEN KRPATA,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                                (July 21, 2010)

Before EDMONDSON, BIRCH and ANDERSON, Circuit Judges.

PER CURIAM:

     Steven Krpata appeals his convictions and sentences for receipt (“Count
One”) and possession (“Count Two”) of child pornography in violation of 18

U.S.C. §§ 2252A(a)(2)(A) and (a)(5)(B), respectively. With respect to Count One,

in August 2008, federal authorities were notified that, in July 2006, Krpata had

purchased child pornography from a website operated by Sergio Marzola, an

individual who engaged in the mass production and sale of child pornography via

the internet. With respect to Count Two, federal authorities conducted a separate

investigation of a commercial child pornography website which revealed that on

January 13, 2007, Krpata had purchased access to a member-restricted website

containing video files and images of child pornography. On or about October 15,

2008, federal authorities searched Krpata’s parents’ residence, where Krpata

resided, and discovered a collection of child pornography containing DVD’s from

Marzola’s website, as well as downloaded files, cut-out photo images, and other

DVD’s. Following the district court’s denial of Krpata’s motion to dismiss based

on double jeopardy grounds, Krpata agreed to plead guilty with the right to appeal

the issue of whether the conviction and sentence for both counts violated the

Double Jeopardy Clause.

      Krpata argues on appeal that his convictions and sentences violate the

Double Jeopardy Clause because possession of child pornography in violation of

§ 2252A(a)(5)(B) is a lesser-included offense of receipt of child pornography in



                                          2
violation of § 2252A(a)(2) under the “same-elements” or Blockburger test. See

Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932).

Moreover, he asserts that when applying this test, the facts of the particular case

should not be taken into consideration.

      We review claims of double jeopardy de novo. United States v. Bobb, 577

F.3d 1366, 1371 (11th Cir. 2009). The Double Jeopardy Clause of the Fifth

Amendment guarantees that no person shall “be subject for the same offence to be

twice put in jeopardy of life or limb.” U.S. Const. amend. V. This guarantee

prohibits, among other things, multiple punishments for the same offense. Bobb,

577 F.3d at 1371. Thus, “where two statutory provisions proscribe the same

offense and there is no clear indication that the legislature intended multiple

punishments for the offense, the Double Jeopardy Clause’s prohibition against

multiple punishments protects a defendant from being convicted under both

provisions.” Id. at 1371-72.

      The test for determining whether two statutory provisions prohibit the same

offense “is whether each provision requires proof of a fact which the other does

not.” Blockburger, 284 U.S. at 304, 52 S. Ct. at 182. Applying this test in Bobb,

we determined that § 2252A(a)(2), prohibiting receipt of child pornography, and

§ 2252A(a)(5)(B), prohibiting possession of the same, proscribe the same conduct



                                           3
because “by proving that a person ‘knowingly receives’ child pornography, the

Government necessarily proves that the person ‘knowingly possesses’ child

pornography.” 577 F.3d at 1373. Moreover, we found “no clear indication of

legislative intent to impose multiplicitous punishment for receipt and possession of

child pornography” and therefore acknowledged that possession of child

pornography is a lesser-included offense of receipt of child pornography. Id. at

1374 (citation and quotation omitted).

      However, we nevertheless affirmed defendant Bobb’s convictions for both

receipt and possession because the “convictions were based on two different

offenses, occurring on two different dates, and proscribed by two different

statutes.” Id. at 1375. In so doing, we, in part, relied upon the evidence presented

at trial. Id. Although our analysis in Bobb was conducted for purposes of plain

error review, our opinion does not indicate that our reasoning would be any

different in the context of preserved error. See Id. Moreover, in United States v.

Mendez, we reviewed the double jeopardy claim de novo and also “assess[ed] the

elements [of each offense] in light of the facts” presented at trial. 117 F.3d 480,

487 (11th Cir. 1997).

      Here, the district court did not err in denying Krpata’s motion to dismiss on

double jeopardy grounds. In this case, two different groups of child pornography



                                           4
images were being relied upon to support the charges alleged in Count One and

Count Two. With respect to Count One, the government would introduce evidence

that Krpata had purchased and received child pornography from Marzola in July

2006. With respect to Count Two, the government would introduce evidence that

in October 2008, Krpata possessed additional DVD’s and images of child

pornography. Therefore, because Krpata’s convictions and sentences were based

on two distinct offenses, occurring on different dates, and proscribed by two

different statutes, Krpata’s convictions and sentences do not violate the Double

Jeopardy Clause.

      AFFIRMED.         1




      1
          Appellant’s request for oral argument is DENIED.

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