                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                              _____________                JULY 7, 2011
                                                            JOHN LEY
                                                              CLERK
                        Nos. 09-15187 & 09-15188
                              _____________

                 D.C. Docket Nos. 04-00016-CR-T-26EAJ
                       & 09-00140-CR-T-26TBM


UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,


                                   versus

JAMES JOSEPH McANDREW,
                                                      Defendant-Appellant.


                               ____________

                Appeals from the United States District Court
                     for the Middle District of Florida
                              ____________

                               (July 7, 2011)

Before TJOFLAT, CARNES and HILL, Circuit Judges.

PER CURIAM:
         James Joseph McAndrew was convicted of three counts of possession and

one count of receipt of child pornography. In a consolidated case, he was

convicted of violating the conditions of his supervised release. The district court

sentenced him above his applicable guideline range in both these cases. In this

consolidated appeal, he appeals his convictions and sentences.

                                         I.

         James Joseph McAndrew was charged in 2003 with two counts of

possession of child pornography and one count of being a felon in possession of a

firearm. He pled guilty to one count of possession of child pornography and to the

firearm possession count and was sentenced to 57 months of imprisonment, to be

followed by three years of supervised release, during which time he was prohibited

from possessing a computer with internet access without written approval from his

probation officer and he was subject to search of his residence based upon

reasonable suspicion.

         McAndrew began serving his supervised release on January 3, 2008. In

December of 2008, the probation department searched McAndrew’s residence.

Child pornography was found on computers, VHS tapes, floppy disks and compact

discs.

         McAndrew was indicted and charged with three counts of possessing child

                                         2
pornography and one count of receiving child pornography.1 Specifically, Count 2

charged computer possession of child pornography, Count 3 charged possession of

videotaped child pornography, Count 4 charged possession of floppy and compact

discs, and Count 5 charged receipt of child pornography. In a separate case, he

was charged with violation of the terms of his supervised release.

       Pursuant to a written plea agreement, McAndrew pleaded guilty to the child

pornography charges in the substantive case in exchange for the government’s

promise to recommend that he be sentenced within the applicable guideline range,

as determined by the court. The plea agreement recited that a forensic

examination of a laptop computer revealed that McAndrew began downloading

new images of child pornography just months after he was released from prison in

2008. A probation officer who reviewed the computer discs and VHS tapes

determined that they contained images that were in existence at the time of the

2003 charges, but that many of the images on these media were viewed shortly

after McAndrew’s release from prison. The plea agreement, however, did not

specify which images and media related to any of the counts in the indictment,

including the count charging receipt of child pornography. In fact, there was no


       1
         Count 1 of the indictment charged that he induced a minor to engage in sexually explicit
conduct for the purpose of videotaping it, but the government dropped this count as a result of
the plea agreement.

                                                3
information in the factual basis regarding the receipt of child pornography except

that McAndrew “began downloading new images of child pornography several

months after he was released from prison.”

      At the change-of-plea hearing, the district court informed McAndrew that

by pleading guilty to the child pornography charges he would also be admitting

that he violated the terms and conditions of his supervised release in his related

revocation case.

      McAndrew was convicted and sentenced on the child pornography charges

and the violation of his supervised release. He challenges these two convictions

and sentences in this consolidated appeal.

      As to the substantive child pornography conviction, he argues that the

government breached its plea agreement with him by recommending an above-

guidelines sentence. He also asserts that his convictions on Counts 2, 3 and 4 of

the indictment for possession of child pornography are lesser included offenses in

his conviction on Count 5 for receipt of child pornography, and thus, violate his

constitutional protection against double jeopardy.

      In the revocation case, he argues that his 24-month above-guidelines

sentence must be vacated because the district court failed to permit him to fully

articulate his objections after it pronounced the sentence; exhibited pervasive

                                          4
judicial bias and hostility towards him sufficient to violate his right to due process

of law; and imposed a sentence that was unreasonable.

      We shall consider each of the cases on appeal separately.

                                          II.

1.    The Child Pornography Convictions

      A.     The Alleged Breach of the Plea Agreement

      McAndrew pleaded guilty to three counts of possession of child

pornography (Counts 2, 3 and 4 of the indictment) and to one count of receipt of

child pornography (Count 5) in exchange for the government’s promise to

recommend a sentence within the applicable guidelines range.

      The PSI grouped Counts 2-5 into a single offense for purposes of the

guidelines calculation. It calculated a base offense level of 22 pursuant to

U.S.S.G. § 2G2.2(a)(2). McAndrew was assigned the following specific offense

characteristics: (1) a 2-level reduction because he did not intend to distribute the

child pornography; (2) a 2-level enhancement because the child pornography

involved minors under the age of 12; (3) a 4-level enhancement because the child

pornography portrayed sadistic, masochistic, or violent conduct; (4) a 5-level

enhancement because McAndrew engaged in a pattern of sexual abuse or

exploitation of a minor; (5) a 2-level enhancement because the offense involved

                                          5
the use of a computer; and (6) a 5-level enhancement because the offense involved

over 600 images. He received a 3-level reduction for his acceptance of

responsibility. The PSI further calculated a criminal history category of III based

on McAndrew’s 2004 conviction and the fact that he committed the instant offense

while on supervised release and within two years following his release from

custody for the 2004 conviction. The PSI also noted McAndrew faced a statutory

minimum penalty of 10 years’ imprisonment on Counts 2-4, up to a maximum

penalty of 20 years. As to Count 5, McAndrew faced a statutory minimum penalty

of 15 years’ imprisonment, up to a maximum penalty of 40 years. The PSI also

noted that an upward departure may be warranted if the length of a pornographic

video is substantially more than five minutes.

         The district court calculated the applicable guideline range as 210 to 262

months imprisonment on Counts 2-4. The government argued that McAndrew

was a sexual predator with no hope of changing and suggested that “the 262-

month maximum guideline sentence was appropriate.” The government, however,

urged more than once that the court send McAndrew to prison for the “rest of his

life.”

         In response to the government’s arguments, McAndrew told the court that

the government was “running real close to breaching the plea agreement.” He

                                            6
concedes, however, that he did not object to the government’s alleged violation

nor accept the court’s offer to rescind the plea agreement.

      After stating that it had considered the § 3553(a) factors and the applicable

guidelines range, and had heard from all the witnesses, the court initially

sentenced McAndrew to life imprisonment. When the government reminded the

court that such a sentence was not statutorily authorized, the court found that an

upward variance was warranted in view of the § 3553(a) factors. The court

sentenced McAndrew to twenty years each on Counts 2, 3 and 4 to run

concurrently, followed by a consecutive term of 40 years on Count 5, for a total of

60 years’ imprisonment. Thus, McAndrew was sentenced to 720 months

imprisonment, an above-guidelines sentence.

      Because McAndrew concedes that he did not object to the government’s

references to a “life sentence” at the change-of-plea hearing, we may review his

claim that the government breached his plea agreement only for plain error.2

United States v. De La Gaza, 516 F.3d 1266, 1269 (11th Cir. 2008). As a result,

McAndrew cannot prevail on this claim unless he can show both error that is plain

and prejudice from that error. Id. He must demonstrate that, but for the



      2
       The concession was made at oral argument, as McAndrew does not address the
government’s plain error argument in his brief.

                                            7
government’s alleged breach of the plea agreement, he would have obtained a

“better result” than the sentence actually imposed. Id.

      McAndrew cannot make this required showing. At sentencing, the district

court, which had sentenced McAndrew in his original child pornography case,

made clear that it considered McAndrew to be a recidivist of the worst sort. The

court stated that it did not think there was a more appropriate case than

McAndrew’s to impose a sentence in excess of the advisory guidelines range

because he was a child “predator” who had victimized his own nieces and

nephews as well as other children for extended periods of time and who had

returned to this criminal activity within one year of his release from prison. The

court further stated that it could not think of “a more heinous crime than the

exploitation of young children.” The fact that some of his victims were blood-

related “exacerbated” the situation. The court noted that, based upon the

testimony of a victim, it appeared that they would “never heal.” Finally, the court

observed that its original sentence clearly had not afforded adequate deterrence as

McAndrew had gone “back to his old ways” so soon after his release. The court

concluded that it needed to fashion a sentence that would protect the public,

especially children, from further crimes committed by McAndrew.

      In imposing sentence, the district court stated for the record that it had

                                          8
considered the advisory guidelines range and the § 3553(a) factors, but had

concluded that an upward variance was required in this case because:

      the only reasonable sentence in this case is to incarcerate him . . . for
      the rest of his natural life, and that’s what I intend to do. To me,
      that’s a reasonable sentence and promotes the statutory purposes of
      sentencing as provided for by law.

      Initially, the district court imposed a life sentence. After being reminded of

the statutory limitations on the sentence, the district court fashioned the 720-

month sentence that it believed achieved the appropriate result in this case.

      It is clear from the district court’s statements at the change-of-plea hearing

that it believed an upward variance was warranted and that a sentence that

achieved incarceration for “the rest of his life” was appropriate for McAndrew.

There is no evidence in this record from which we can conclude that the court

would have imposed a lesser sentence had the government not urged it to fashion a

sentence that would imprison McAndrew “for the rest of his life.” A defendant

fails to meet his burden to show prejudice where, at best, it is uncertain whether

the government’s breach had an effect on the defendant’s sentence. Id. at 1270-

71.

      Although we agree that the government’s performance at the change-of-plea

hearing ran counter to the spirit, if not the letter, of its agreement with McAndrew,



                                          9
we can find no evidence in this record that would carry McAndrew’s burden of

showing prejudice from this inartful performance. As a result, McAndrew’s

failure to object to the government’s performance at the change-of-plea hearing is

fatal to his claim for relief from it now.

      B.     The Alleged Double Jeopardy Violation

      We have held that possession of child pornography is a lesser-included

offense of receipt of child pornography and a double jeopardy violation unless the

defendant “committed two distinct offenses, occurring on two different dates, in

breach of two different statutes.” United States v. Bobb, 577 F.3d 1366, 1371 (11th

Cir. 2009). In this case, McAndrew was convicted on Counts 2, 3 and 4 for

possession of child pornography from an unknown date to December 10, 2008.

He was convicted in Count 5 of receiving child pornography from an unknown

date to December 10, 2008. Therefore, unless the possession of child pornography

charged in Counts 2, 3 and 4 is different from the receipt of child pornography

charged in Count 5, the possession convictions are lesser included offenses of the

receipt conviction, thereby offending the Double Jeopardy Clause.

      As an initial matter, the government concedes that McAndrew’s conviction

on Count 2 cannot be distinguished from his conviction on Count 5. Count 5

charges that, from an unknown date until December 10, 2008, McAndrew received

                                             10
“any” child pornography. The indictment does not refer to any specific media; on

the contrary, it sweeps broadly enough to include all types of child pornography

that he received. Count 2 charges McAndrew with possession of child

pornography on a computer. As possession of child pornography on a computer

is a lesser included offense of the receipt of any child pornography during the

same time frame, the government agrees with McAndrew that he cannot be

constitutionally convicted of both these counts.

      As to Count 3, the government points out that the videotapes charged were

made by McAndrew himself, thereby negating the requirement of Count 5 that he

“receive” them. This contention is supported by the PSI and was not objected to

by McAndrew. McAndrew concedes that the PSI contains this support. Thus, we

find no double jeopardy violation as the possession of homemade pornographic

videotapes charged in Count 3 is not the same conduct as the receipt of any child

pornography charged in Count 5.

      Count 4 charged the possession of floppy and compact discs. The facts

recited in the plea agreement reveal that these computer discs existed at the time of

McAndrew’s 2003 charges. The government attempts to distinguish these discs

from the pornography charged in Count 5 by claiming that Count 5 charges only

the receipt of child pornography that McAndrew downloaded to his computer after

                                         11
he was released from prison in 2008. This argument fails, however, because

Count 5, by its own terms, encompasses the receipt of any child pornography from

an unknown date until December 10, 2008, the same time period as Count 4.

Thus, by its own terms, Count 5 encompasses the conduct charged in Count 4. As

a result, McAndrew’s conviction on both Counts 4 and 5 implicates the Double

Jeopardy Clause.

      McAndrew failed to raise this double jeopardy claim before the district

court. Nevertheless, under plain error review, we hold that the double jeopardy

violations with respect to the overlap between Counts 2, 4, and 5 is both plain and

cognizable as it “seriously affected the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Miller, 527 F.3d 54, 58-59, 70-74. (3d Cir.

2008). See also United States v. Davenport, 519 F.3d 940, 942, 947-48 (9th Cir.

2008).

      The proper remedy for a double jeopardy violation is to remand the case to

the district court so that it may choose which counts to vacate. See United States

v. Ball, 470 U.S. 856, 864 (1985). Accordingly, we shall vacate the judgment in

this case and remand to the district court with instructions to vacate McAndrew’s

convictions and sentences on either Counts 2 and 4 or on Count 5.

2.    The Revocation Case

                                          12
      The court calculated a guidelines sentencing range of four to ten months for

the revocation case, but sentenced McAndrew to the statutory maximum of two

years on the revocation case, to run consecutively with his other sentences.

McAndrew claims that this sentence must be vacated because the district court

failed to permit him to fully articulate his objections after it pronounced the

sentence; exhibited pervasive judicial bias and hostility towards him sufficient to

violate his right to due process of law; and imposed a sentence that was

unreasonable. We have carefully reviewed these arguments in light of the record

in this case and find them to be without merit.

                                         III.

      In view of the foregoing, we vacate the judgment in this case and remand to

the district court for re-sentencing in accord with this opinion.

      VACATED AND REMANDED FOR RESENTENCING.




                                          13
