                      FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                    No. 17-10296
            Plaintiff-Appellee,
                                              D.C. No.
                 v.                     2:16-cr-00195-DLR-1

JUAN PABLO GARRIDO CHILACA,
         Defendant-Appellant.                  OPINION



        Appeal from the United States District Court
                 for the District of Arizona
        Douglas L. Rayes, District Judge, Presiding

          Argued and Submitted October 15, 2018
                San Francisco, California

                  Filed November 26, 2018

 Before: Michael Daly Hawkins and Andrew D. Hurwitz,
  Circuit Judges, and Lee H. Rosenthal, * Chief District
                         Judge.

         Opinion by Chief District Judge Rosenthal



    *
      The Honorable Lee H. Rosenthal, Chief United States District
Judge for the Southern District of Texas, sitting by designation.
2                 UNITED STATES V. CHILACA

                          SUMMARY *


                          Criminal Law

    The panel reversed in part, vacated in part, and
remanded, in a case in which the defendant was convicted of
four counts of possessing child pornography, in violation of
18 U.S.C. § 2252(a)(4)(B).

    The panel held that, under § 2254(a)(4)(B), which makes
it a crime to knowingly possess “1 or more” matters
containing any visual depiction of child pornography,
simultaneous possession of different matters containing
offending images at a single time and place constitutes a
single violation. The panel held that the four counts
charging the defendant with possession of child-
pornography images on separate media found at the same
time and in the same place were therefore multiplicitous and
constituted double jeopardy. The panel held that the error
was not harmless, but that because the record clearly shows
that evidence presented at trial would have been the same
regardless of the number of counts charged, no new trial is
warranted. The panel remanded with instructions to vacate
three of the multiplicitous counts of convictions and to
resentence the defendant on the remaining count.




    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                   UNITED STATES V. CHILACA                           3

                            COUNSEL

Juliana Manzanarez (argued) and Ray A. Ybarra
Maldonado, Ybarra Maldonado & Associates, Phoenix,
Arizona, for Defendant-Appellant.

Peter S. Kozinets (argued) Assistant United States Attorney;
Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A.
Strange, First Assistant United States Attorney; United
States Attorney’s Office, Phoenix, Arizona; for Plaintiff-
Appellee.


                             OPINION

ROSENTHAL, Chief District Judge:

     Juan Pablo Garrido Chilaca was convicted after a jury
trial of four counts of possessing child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B). The district court
sentenced Chilaca to serve four concurrent 66-month prison
terms, followed by a lifetime of supervised release.

    In this appeal, Chilaca contends that his four counts of
conviction were multiplicitous and constituted double
jeopardy. This court has jurisdiction under 28 U.S.C.
§ 1291. We reverse and remand with instructions to vacate
all but one of the counts and to resentence Chilaca
accordingly. 1



    1
      Chilaca also contends that the district court erred in denying his
motion to suppress his confession. We dispose of that contention in a
separate memorandum disposition filed today.
4              UNITED STATES V. CHILACA

I. BACKGROUND

    In May 2015, Dropbox, Inc.—an internet company
providing data storage for electronic files—submitted a tip
to the National Center for Missing and Exploited Children
that child-pornography images had been uploaded to an
account registered to “Pablo Garrido.” Dropbox identified
the account email address as karmus28@gmail.com. The
FBI linked the Dropbox and email accounts to IP addresses
and to a cellphone number in Pablo Garrido’s name.

   Executing a search warrant for Chilaca’s home, FBI
agents seized a Compaq desktop computer tower, a loose
Western Digital hard drive disconnected from a computer,
and a Simple Tech Pro Drive hard drive. Each device
contained videos or images of child pornography. Each
device was linked to the Dropbox account, allowing files
added to a folder on that device to upload to the Dropbox
account; the images were therefore accessible from the
Dropbox folder on the other devices.

    A grand jury indicted Chilaca for two counts of child-
pornography       possession,       in     violation     of
18 U.S.C. § 2252(a)(4)(B).     A superseding indictment
charged      Chilaca     with     four    counts,     again
under § 2252(a)(4)(B). Count 1 charged possession of 24
images and 1 video of child pornography in the Dropbox
account; Count 2 charged possession of 22 images and 6
videos on a “Seagate brand hard drive”; Count 3 charged
possession of 7 images and 5 videos on a “Western brand
hard drive”; and Count 4 charged possession of 6 images and
2 videos on a “Simple Tech Pro Drive brand hard drive.”

   Chilaca moved to dismiss the superseding indictment as
multiplicitous, arguing that he could be charged with only
                 UNITED STATES V. CHILACA                     5

one count of violating 18 U.S.C. § 2252(a)(4)(B).          The
district court denied the motion to dismiss.

    The jury found Chilaca guilty on all four counts, and the
district court sentenced him to four concurrent 66-month
terms, a lifetime of supervised release, a $400 special
assessment, and $6,000 in restitution. The issue is whether
the court erred by finding that the indictment was not
multiplicitous and did not violate the Double Jeopardy
Clause.

II. THE LEGAL STANDARD

     The Double Jeopardy Clause of the Fifth Amendment
protects against multiple criminal punishments for the same
offense. U.S. Const. amend. V (“[N]or shall any person be
subject for the same offense to be twice put in jeopardy of
life or limb.”). The court reviews de novo the legality of the
conviction and the district court’s denial of the motion to
dismiss based on double jeopardy. United States v. Overton,
573 F.3d 679, 690 (9th Cir. 2009).

      “An indictment is not multiplicitous merely because it
charges more than one violation of the same statute based on
related conduct; instead, a defendant can be convicted of
multiple violations of the same statute if the conduct
underlying each violation involves a separate and distinct
act.” United States v. Technic Servs., Inc., 314 F.3d 1031,
1046 (9th Cir. 2002), overruled on other grounds by United
States v. Contreras, 593 F.3d 1135 (9th Cir. 2010). “Where
. . . a single act or transaction is alleged to have resulted in
multiple violations of the same statutory provision, the
Supreme Court has stated that the proper inquiry involves
the determination of ‘[w]hat Congress has made the
allowable unit of prosecution.’” United States v. Keen, 104
F.3d 1111, 1118 (9th Cir. 1996) (alteration in original)
6                  UNITED STATES V. CHILACA

(quoting United States v. Universal C.I.T. Credit Corp., 344
U.S. 218, 221 (1952)).

III.       ANALYSIS

       A. The Four Counts Were Multiplicitous

    Section 2252(a)(4)(B) makes it a crime for “[a]ny
person who either knowingly possesses, or knowingly
accesses with intent to view, 1 or more books, magazines,
periodicals, films, video tapes, or other matter which contain
any     visual     depiction”     of    child    pornography.
18 U.S.C. § 2252(a)(4)(B). The indictment charged four
§ 2252(a)(4)(B) violations. The question is whether, under
this statute, simultaneous possession of child-pornography
images, stored in different media and found in the same
location, creates separate “allowable units of prosecution.” 2

    Chilaca argues that simultaneously possessing “1 or
more” media or electronic storage devices that contain child-
pornography images is only one violation of
§ 2252(a)(4)(B), regardless of the number of images or
separate media used to store the images. The government
argues that storing child pornography on the Dropbox
account and three hard drives constitutes four separate and
distinct acts. If not, the government argues, possessing “a
single item that contains child pornography” would be
analogous to someone possessing “a warehouse of such
items,” both punishable by only one count of conviction.



       2
      Neither party contests that the Dropbox account is a medium that
can be the subject of a unit of prosecution under § 2252(a)(4)(B), and we
so assume for purposes of this appeal.
                   UNITED STATES V. CHILACA                            7

    The circuits that have squarely addressed the issue before
us have concluded that multiple counts under
§ 2252(a)(4)(B) are multiplicitous when the defendant
simultaneously possessed the child pornography on different
devices found at the same time and in the same place.

    The Second Circuit considered whether several
convictions under § 2252(a)(4)(B) were multiplicitous in
United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009). The
defendant had 11 computer files containing child-
pornography images and was charged with 11 counts of
possession. Id. at 154. On appeal, the court concluded that
the “1 or more” language in § 2252(a)(4)(B) means that a
person who simultaneously possessed multiple “matters”
found at the same place committed only one § 2252(a)(4)(B)
violation. Id. at 155. The court contrasted the phrase “1 or
more” in § 2252(a)(4)(B) with the language in
§ 2252A(a)(5) criminalizing the possession of “any” child-
pornography images. Id. The court held that the use of
“any” in § 2252A(a)(5)(B) meant that one “matter” was
enough for a separate count of violation, while the use of “1
or more” was clearly plural and meant that even multiple
“matters” could support only one violation. 3 Id.


     3
       Based on that holding, the Second Circuit declined to consider
whether each computer file containing child-pornography images was a
separate “matter” under the statute, or whether a hard drive containing
“1 or more” files was a “matter.” The court held that § 2252(a)(4)(B)
did not permit the defendant “to be convicted on multiple possession
counts under either interpretation.” Id. at 155 n.4 (citing United States
v. Lacy, 119 F.3d 742, 748 (9th Cir. 1997)). The court also declined to
consider whether there could be multiple convictions under
§ 2252(a)(4)(B) if the defendant acquired possession of the images on
different occasions and stored them on different kinds of devices, such
as on a laptop or a cellphone, because the defendant had been charged
8                  UNITED STATES V. CHILACA

    In United States v. Chiaradio, 684 F.3d 265 (1st Cir.
2012), the First Circuit considered “what the legislature
intended the proper unit of prosecution to be when it
criminalized the possession of ‘one or more’ matters
containing illicit depictions.” Id. at 273. Law-enforcement
agents seized a laptop computer from the defendant’s
bedroom and a desktop computer from a spare bedroom. Id.
at 271. Each computer contained child-pornography images.
Id. at 272. The defendant was charged with two counts of
possessing child pornography under § 2252(a)(4)(B), which
he challenged as multiplicitous. Id. The government argued,
as it does here, that “the proper unit of prosecution is each
matter or physical medium on which images are stored.” Id.
at 273. The government argued that two computers, one a
desktop and one a laptop, located in two different rooms,
supported two counts of conviction. Id. The court rejected
the argument, finding no indication that the “1 or more”
language means that Congress intended to allow multiple
prosecutions based on multiple media with child-
pornography images simultaneously possessed by the same
person. Id. at 273–74.

    Chiaradio relied on the Fifth Circuit’s decision in United
States v. Kimbrough, 69 F.3d 723, 730 (5th Cir. 1995),
interpreting an earlier version of § 2252(a)(4)(B).
Chiaradio, 684 F.3d at 274. The earlier version criminalized
possession of “three or more” items containing child
pornography. See Kimbrough, 69 F.3d at 730. The First
Circuit concluded that both the prior and revised language
showed Congress’s intent to allow only one conviction for
simultaneously possessing one or more images, even if on

with possessing “on a single date, eleven computer files stored on three
hard drives housed in two adjacent rooms in a single premises, his
detached garage.” Id. at 155 n.5.
                UNITED STATES V. CHILACA                  9

different storage media or devices. 684 F.3d at 274–75.
Chiaradio concluded that changing the statute from “three
or more” to “1 or more” showed that Congress wanted to
prosecute possession of fewer images but not to increase the
units of prosecution. Id. (“Accordingly, we hold that the
plain language of section 2252(a)(4)(B) memorializes
Congress’s intent, at least in circumstances similar to the
circumstances of this case, that one who simultaneously
possesses a multitude of forbidden images at a single time
and in a single place will have committed only a single
offense. In this instance, the defendant may have possessed
two ‘matters’ (i.e., two computers) that collectively
contained thousands of images, but his simultaneous
possession of ‘one or more’ matters transgressed the statute
only once.”).

   The Chiaradio court also rejected the government’s
argument that storing images on separate computers in
separate rooms made a legal difference under
§ 2252(a)(4)(B):

       The computers, while in separate rooms,
       were in the same house and were
       programmed so that files could move freely
       between them. If a defendant had multiple
       photo albums of images in his bedroom and
       living room and periodically swapped images
       between them, two convictions—one for
       each album—would not stand. This case, it
       seems to us, is the electronic equivalent of
       that situation.

Id. at 275. The First Circuit also rejected a comparison to
cases analyzing possession of child pornography under
§ 2252A, which uses the word “any” instead of “1 or more.”
10              UNITED STATES V. CHILACA

“The phrase ‘one or more,’ unlike the word ‘any,’ strongly
suggests Congress’s intent that multiple matters be included
in a single unit of prosecution.” Id.

    In United States v. Emly, 747 F.3d 974 (8th Cir. 2014),
the Eighth Circuit considered the same issue. The court
distinguished its precedent in United States v. Hinkeldey,
626 F.3d 1010 (8th Cir. 2010), which held that possession
under § 2252A(a)(5)(B) allows a separate count for any type
of material possessed. Emly, 747 F.3d at 978 (“Unlike the
term ‘any’ in § 2252A(a)(5)(B), the phrase ‘1 or more’ in
§ 2252(a)(4)(B) arguably manifests a clear intention to
include multiple materials in a single unit of prosecution.”
(quoting Hinkeldey, 626 F.3d at 1014)). The Emly court
agreed with Polouizzi and Chiaradio, rejecting the
government’s attempt to distinguish those cases. Id. at 979.
The court found critical that “Emly possessed all of the
images found on the separate devices on one medium prior
to copying and transferring them onto the separate devices”
and that “all of the devices were seized from one location,
Emly’s bedroom.” Id. “Although certain of the devices
contained images different from the others, the images were
not distinct in that they all originated from Emly’s laptop.”
Id.

    The reasoning of our sister circuits is compelling. In
arguing that those cases should not be followed, the
government relies on the legislative history surrounding the
amendment of § 2252(a)(4)(B), which previously prohibited
the possession of “three or more” matters, to now prohibit
the possession of “1 or more” matters. See Protection of
Children from Sexual Predators Act of 1998, Pub. L. No.
105-314, § 203, 112 Stat. 2974, 2978. The government
asserts that the name of the amendment, “Zero Tolerance for
Possession of Child Pornography,” and the comments of the
                UNITED STATES V. CHILACA                   11

bill’s proponents showed Congress’s intent to stringently
enforce laws against possessing child pornography, and
argues that treating possession of one child-pornography
image the same way as possession of multiple images by
limiting the government to a single count would be an absurd
result.

    But we agree with our sister circuits that the legislative
history of § 2252(a)(4)(B) points in the opposite direction.
See Chiaradio, 684 F.3d at 274 (“But the legislative history
contains no indication that Congress intended to permit
multiple prosecutions when it used the term ‘one or more’ in
section 2252(a)(4)(B), nor is there any inkling that Congress
intended to allow prosecutors to divide simultaneous
possession by a single individual of several matters
containing child pornography into multiple units of
prosecution.”); Polouizzi, 564 F.3d at 156 (“That Congress,
by its 1998 amendment, intended to prohibit ‘possession of
even one item or image containing child pornography’ does
not indicate that Congress intended to permit separate
prosecution and punishment for each such item or image
possessed.” (citations omitted)). The 1998 change in
§ 2252(a)(4)(B) from “three or more” to “one or more” does
not indicate an intent to allow multiple prosecutions or to
permit prosecutors to divide simultaneously possessed
media into multiple units of prosecution. See Chiaradio, 684
F.3d at 274; see also Bell v. United States, 349 U.S. 81, 83
(1955) (“When Congress has the will it has no difficulty in
expressing it—when it has the will, that is, of defining what
it desires to make the unit of prosecution . . . .”).

    The government urges us not to follow these out-of-
circuit precedents, citing dicta in United States v. Schales,
546 F.3d 965, 979–80 (9th Cir. 2008), stating that receiving
child-pornography images on a computer hard drive and
12              UNITED STATES V. CHILACA

subsequently transferring them to different physical storage
media could constitute separate acts. But the actual holding
in Schales was that the indictment as written provided an
insufficient basis to conclude that the charged receipt and
possession offenses were either based on separate acts or
separate units of prosecution. Id. at 979. And, as Chiaradio
noted, the Schales dictum relied on United States v. Planck,
493 F.3d 501, 504 (5th Cir. 2007), which interpreted
§ 2252A, not § 2252(a)(4)(B). Chiaradio, 684 F.3d at 275
n.3; Schales, 546 F.3d at 979. Section 2252A criminalizes
possession of “any” matter, which the appellate courts
consistently distinguish from the “1 or more” language of
§ 2252(a)(4)(B). The Schales panel did not have the benefit
of the subsequent decisions of our sister circuits interpreting
§ 2252(a)(4)(B). Schales thus does not require that we
accept the government’s position, and we decline its
invitation to create a circuit split. See Kelton Arms Condo.
Owners Ass’n v. Homestead Ins. Co., 346 F.3d 1190, 1192
(9th Cir. 2003) (“[W]e decline to create a circuit split unless
there is a compelling reason to do so.”).

    The government argues that § 2252 and § 2252A are
“materially identical,” with the only distinguishing feature
being that § 2252A includes images of children that have
been digitally morphed to resemble sexual depictions. We
are not persuaded. This argument overlooks the textual
distinction between § 2252A’s use of “any” before the
object of the offense and § 2252(a)(4)(B)’s use of “1 or
more.” See Brown v. United States, 623 F.2d 54, 58 (9th Cir.
1980) (“[P]refac[ing] the object of the offense with the word
‘any,’” has led other circuits to “conclude[] that no clear
intent to impose cumulative punishment has been expressed
by Congress. . . . ‘Seemingly this is because “any” may be
said to fully encompass (i.e., not necessarily exclude any part
of) plural activity, and thus fails to unambiguously define the
                 UNITED STATES V. CHILACA                    13

unit of prosecution in singular terms.’” (quoting United
States v. Kinsley, 518 F.2d 665, 667 (8th Cir. 1975))); see
also Chiaradio, 684 F.3d at 275–76; Polouizzi, 564 F.3d at
158 (the language criminalizing “any” prohibited images is
ambiguous as to the allowable unit of prosecution).

    We, like all other circuits that have considered the issue,
interpret § 2252(a)(4)(B)’s use of the phrase “1 or more” to
mean that the simultaneous possession of different matters
containing offending images at a single time and place
constitutes a single violation of the statute.             This
interpretation is consistent with the provision’s plain
language and the structure of the statute as a whole. Indeed,
subsection (c) of the statute provides that it is an affirmative
defense to a charged violation of § 2252(a)(4)(B) “that the
defendant possessed less than three matters containing any
visual depiction proscribed by that paragraph” and took
specified measures to destroy the matters or report their
existence to law enforcement. 18 U.S.C. § 2252(c). The
possession of less than three matters would be no defense to
a violation of § 2252(a)(4)(B) if the possession of each
individual matter gave rise to a separate unit of prosecution.

    The government does not dispute that Chilaca’s
possession of child-pornography images on the separate
media was simultaneous and in the same location. See
Chiaradio, 684 F.3d at 276 (“The short of it is that, on the
facts of this case, the defendant’s unlawful possession of a
multitude of files on two interlinked computers located in
separate rooms within the same dwelling gave rise to only a
single count of unlawful possession under section
2252(a)(4)(B).”). The four counts under § 2252(a)(4)(B)
charged in the indictment against Chilaca are therefore
multiplicitous.
14               UNITED STATES V. CHILACA

     B. Multiplicity Is Not Harmless Error

    The government argues that any error was harmless
because the offenses were grouped for Guidelines
calculation, see U.S.S.G. §§ 3D1.2(d), 2G2.2 (2016), and
Chilaca was sentenced to four concurrent 66-month prison
terms. In United States v. Kuchinski, 469 F.3d 853, 856 (9th
Cir. 2006), the court considered a defendant who had been
charged with and convicted for both receipt and possession
of child pornography under § 2252A(a)(2) and (a)(5)(B).
The defendant pleaded guilty to the possession charge, but
left the receipt charge for trial, after which he was found
guilty. Id. On appeal, the defendant argued that the trial
violated the Double Jeopardy Clause because possession
was a lesser-included offense of receipt. Id. at 857. The
court’s holding addressed only a defendant who “was tried
in a single prosecution with ‘greater and lesser included
offenses,’ but pled guilty to a lesser offense before trial.” Id.
at 859 (citation omitted). In that circumstance, “double
jeopardy was not implicated in his trial on the greater
offense” because “[w]hile the Double Jeopardy Clause may
protect a defendant against cumulative punishments for
convictions on the same offense, the Clause does not prohibit
the State from prosecuting [defendant] for such multiple
offenses in a single prosecution.” Id. (emphasis and
alterations in original) (internal quotation omitted). The
defendant in Kuchinski “was not punished separately for
these counts, because his possession and receipt convictions
were grouped pursuant to U.S.S.G. § 3D1.2(d) for the
purposes of the Guidelines calculation.” Id.

    In Kuchinski, the defendant argued only that the trial
violated the Double Jeopardy Clause, not that the
convictions violated double jeopardy. Id. By contrast,
Garrido Chilaca argues that his multiple counts of conviction
                 UNITED STATES V. CHILACA                    15

for possession violate the Double Jeopardy Clause. Indeed,
the court concluded in Kuchinski that even if the length of
the sentence itself did not violate the Double Jeopardy
Clause, the multiple convictions did. Id. at 859–60 (“If, as
it seems, the counts were based on the same acts, entering
judgment on both of the offenses would be improper.
Nothing in the statutory scheme suggests that Congress
intended that there be two punishments for a single act and
courts cannot ignore the collateral consequences, which are
not eliminated by concurrent sentencing.”). The panel thus
ordered the district court to “vacate the judgment and
sentence” and remanded with instructions for the district
court to “revisit this question.” Id. at 860.

    In Overton, we also explained that concurrent sentences
do not make a double jeopardy violation harmless. Overton,
573 F.3d at 690 (“[W]e acknowledge that conviction on
multiple counts carries collateral consequences that, if
unlawfully multiplicitous, we cannot ignore simply because
imposed sentences might run concurrently.”). “For example,
the presence of two convictions on the record may delay the
defendant’s eligibility for parole or result in an increased
sentence under a recidivist statute for a future offense . . .
and certainly carries the societal stigma accompanying any
criminal conviction.” Id. (quoting Rutledge v. United
States, 517 U.S. 292, 302 (1996)). “Where we conclude that
a defendant has suffered a double jeopardy violation because
he was erroneously convicted for the same offense under two
separate counts,” the sole remedy consistent with
congressional intent is to have the district court “exercise its
discretion to vacate one of the underlying convictions.” Id.
(quoting Schales, 546 F.3d at 980). The error in this case
was therefore not harmless.
16              UNITED STATES V. CHILACA

     C. The Remedy Is Remand for Resentencing.

    Chilaca argues that the four multiplicitous counts
prejudiced the jury and require a new trial. The case law
undermines Chilaca’s argument. The court in United States
v. Nash, 115 F.3d 1431, 1438 (9th Cir. 1997), stated that
“[e]ven assuming that [a new trial] might ever be warranted
for multiplicity, this appeal is not a candidate for it because
the government would have introduced exactly the same
evidence had the indictment contained only one count.” This
is consistent with our other precedents holding that the
appropriate remedy for a conviction for multiplicitous
charges is to vacate the multiplicitous count convictions, not
a new trial. See, e.g., United States v. Zalapa, 509 F.3d 1060,
1065 (9th Cir. 2007) (“The remedy for meritorious
multiplicity claims is for the district court to vacate the
multiplicitous conviction and sentence.” (citations omitted)).

    Because the record clearly shows that evidence
presented at trial would have been the same regardless of the
number of counts charged, no new trial is warranted.

IV. CONCLUSION

    This action is remanded with instructions to vacate three
of the multiplicitous convictions and resentence Chilaca for
one count of possession of child pornography.

  REVERSED in part, VACATED in part, and
REMANDED with instructions.
