               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0192n.06

                                         No. 17-5604


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                                       FILED
                                                                            Apr 12, 2018
       Plaintiff-Appellee,                                             DEBORAH S. HUNT, Clerk

v.
                                                    ON APPEAL FROM THE UNITED
                                                    STATES DISTRICT COURT FOR THE
DAMION D. FAULKNER,
                                                    MIDDLE DISTRICT OF TENNESSEE
       Defendant-Appellant.



BEFORE:       MERRITT, CLAY, and SUTTON, Circuit Judges.

       CLAY, Circuit Judge. Defendant Damion D. Faulkner appeals his convictions and

sentences for multiple child pornography offenses under 18 U.S.C. § 2251 and 18 U.S.C.

§ 2252A. He argues that his convictions and sentences for receiving and possessing child

pornography violate the Double Jeopardy Clause and that the district court made various other

errors at sentencing. For the reasons set forth below, we REMAND the case with instructions

for the district court to determine whether Faulkner’s convictions for receiving and possessing

child pornography were based on the same pornographic images or different pornographic

images. We do not address Faulkner’s remaining challenges.

                       FACTUAL AND PROCEDURAL HISTORY

       Faulkner’s background suggests a history of pedophilia. On about five occasions in

2006, Faulkner fondled his five-year-old niece, M.F., with his hands. He also took pictures of

M.F. while she was asleep, one time moving aside her shorts to see her underwear. When M.F.
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told her mother what Faulkner had done, she was taken to the hospital. However, no evidence of

sexual contact was found and the matter was dropped.

       Around seven years later, on July 20, 2013, Faulkner took pornographic photographs and

a pornographic video of O.B., his niece’s five-year-old stepsister. O.B. was sleeping at the time,

and Faulkner pulled back her shorts and underwear so he could focus on her vaginal area,

touching her with his fingers. In the ensuing months, Faulkner emailed the pornographic images,

and sometimes the video, to at least 10 different individuals.

       The next day, July 21, 2013, Faulkner again attempted to produce pornographic

photographs of O.B. Specifically, he watched O.B. and M.F. (who was 11 at the time) play

together, hoping to catch O.B. in a sexual pose. However, he failed to take any provocative

pictures. His photographs—some of which included M.F.—were not overtly sexual.

       Authorities eventually became aware of Faulkner’s online pornographic activity. On

January 3, 2014, police executed a search warrant at Faulkner’s residence. Faulkner immediately

confessed to producing and distributing pornographic images and video of O.B. When police

told Faulkner he could spare his victims further trauma by admitting to previous misconduct,

Faulkner confessed to molesting M.F. in 2006. A search of Faulkner’s computer revealed the

photographs and video of O.B. and M.F, as well as 3,300 images and 103 videos of child

pornography. In addition, Faulkner had saved approximately 200 images of child pornography

from his email account to his cell phone’s media card.

       In June 2016, the government filed a 15-count superseding indictment against Faulkner,

charging him with the following crimes:

      Production of Child Pornography on or about July 20, 2013, in violation of 18 U.S.C.
       § 2251(a) and (d) (Count 1);
      Production and Attempted Production of Child Pornography on or about July 21, 2013, in
       violation of 18 U.S.C. § 2251(a) and (d) (Count 2);

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      Eleven counts of Transportation of Child Pornography on various dates in July, August,
       September, and October 2013, in violation of 18 U.S.C. § 2252A(a)(1) and (b) (Counts
       3–13);
      Receipt of Child Pornography between March 11, 2013 and November 14, 2013, in
       violation of 18 U.S.C. § 2252A(a)(2)(a) and (b) (Count 14); and
      Possession of Child Pornography on or about January 3, 2014, in violation of 18 U.S.C.
       § 2252A(a)(5)(B) and (b) (Count 15).

Faulkner pleaded guilty to all counts. With regard to the receipt and possession counts, Faulkner

admitted that he had received and possessed child pornography. However, he did not admit to

receiving or possessing any images or videos in particular. At the end of the plea hearing, the

district court explained—and both parties agreed—that Faulkner “can appeal the sentence

imposed as well as the finding of guilt.”

       As relevant here, the PSR determined that counts 1 and 2 (production and attempted

production of child pornography of O.B.) caused separate harms, and therefore could not be

grouped in the guidelines offense-level calculations. This determination increased Faulkner’s

overall offense-level from 42 to 43. In addition, the PSR determined that Faulkner had two

criminal history points, one for his shoplifting conviction and another for his drunk-driving

conviction. That put Faulkner in criminal history category II. At Faulkner’s offense level and

criminal history category, the guidelines range was life imprisonment. However, because life

imprisonment was not authorized for any of his crimes, Faulkner’s guidelines range became the

maximum sentence he could receive for each offense, imposed consecutively. See U.S.S.G.

§ 5G1.2(d). That figure corresponded to 320 years’ imprisonment—30 years on counts 1 and 2

plus 20 years on counts 3 through 15.

       At sentencing, Faulkner argued, among other things, that counts 1 and 2 should have

been grouped together in his guidelines offense-level calculations. The district court rejected this

argument, reasoning that counts 1 and 2 caused separate, distinct harms.            In addition to


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contesting the district court’s guidelines calculations, Faulkner requested leniency and expressed

remorse. Faulkner was ultimately given a below-guideline sentence of 55 years’ imprisonment.

       On appeal, Faulkner argues that his convictions for receiving and possessing child

pornography violate the Double Jeopardy Clause; that his convictions for production and

attempted production of child pornography should have been grouped together under guideline

§ 3D1.2(b); that his criminal history was overstated; and that his sentence was substantively

unreasonable.

                                         DISCUSSION

       We first consider Faulkner’s Double Jeopardy challenge. Because we remand for further

proceedings related to this issue, we do not reach Faulkner’s remaining challenges.

                                      Standard of Review

       Although Faulkner did not raise any Double Jeopardy claim in the district court, he

argues that we should nonetheless review his challenge de novo. (See Def.’s Reply Br. at 6–7

(citing United States v. Rosenbarger, 536 F.2d 715, 721–22 (6th Cir. 1976)).) The government

disagrees, arguing that we should review Faulkner’s claim for plain error. (See Gov’t Br. at 20

(citing United States v. Dudeck, 657 F.3d 424, 427 (6th Cir. 2011)).) We need not resolve this

dispute because, as discussed below, Faulkner is entitled to a remand under either standard.

                                            Analysis

       Under the Fifth Amendment’s Double Jeopardy Clause, a defendant cannot be put “in

jeopardy of life or limb” twice for the same offense. U.S. Const. amend. V. (“nor shall any

person be subject for the same offense to be twice put in jeopardy of life or limb”). The Supreme

Court interpreted this requirement in Blockburger v. United States, explaining that “the same act

or transaction constitutes a violation of two distinct statutory provisions”—and therefore



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comports with the Double Jeopardy Clause—when “each provision requires proof of a fact

which the other does not.” 284 U.S. 299, 304 (1932).

       In United States v. Ehle, 640 F.3d 689 (6th Cir. 2011), we held that possession of child

pornography does not require proof of any fact that the receiving provision does not. See

18 U.S.C. § 2252A(a)(2)(A), (a)(5)(B). “[O]ne obviously cannot ‘receive’ an item without then

also ‘possessing’ that item, even if only for a moment.” Ehle, 640 F.3d at 695. Consequently,

convicting a defendant for both offenses violates the Double Jeopardy Clause unless the

convictions stem from different acts or transactions. Id. at 694–96. The government argues that

Faulkner’s receipt and possession convictions were based on separate conduct because: (1) the

offenses took place on different dates; (2) Faulkner received his photographs through the internet

but possessed them on the media card of his cell phone; and (3) the offenses involved different

pornographic images.

       We reject the government’s first argument—that Faulkner’s receipt and possession

offenses are distinct because they occurred on different dates. Indeed, we addressed this exact

issue in Ehle. In Ehle, the defendant was charged with receiving child pornography from the

internet between 2006 and April 2007 and then possessing that same pornography on his

computer and “stacks of computer disks” in April 2007. Id. at 696. We found that punishing a

defendant for both receiving and possessing the same images would “require wholly subjective

line-drawing to determine when possession incidental to receiving morphs into possession

independent of the reception.” Id. Accordingly, we held that a defendant cannot be convicted of

receiving child pornography on one date and possessing that same child pornography on a later

date. Id. at 696–98. Applying Ehle to this case, Faulkner’s receipt and possession offenses are

not distinct solely because they occurred on different dates.



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       We also reject the government’s second argument—that Faulkner’s receipt and

possession offenses were based on separate conduct because he received pornographic images at

his email address, but later possessed pornographic images on the media card of his cell phone.

Again, Ehle is instructive. In Ehle, the defendant downloaded pornographic images to his

computer and later transferred them to “stacks of computer disks.” Id. at 696. The government

argued that as of a result of this transfer between electronic media, the receipt and possession

offenses were based on separate conduct. We disagreed, explaining that “electronically

transferring the pornography to different locations” is insufficient by itself to support separate

convictions for receiving and possessing child pornography. Id. Ehle is binding on us as a

published case. Consequently, we do not follow a later case, United States v. Ogden, 685 F.3d

600, 603 (6th Cir. 2012), that approached this issue differently.1 See Salmi v. Sec’y of Health &

Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel of this Court cannot overrule the

decision of another panel. The prior decision remains controlling authority unless an inconsistent

decision of the United States Supreme Court requires modification of the decision or this Court

sitting en banc overrules the prior decision.”).

       Finally, we consider the government’s third argument—that Faulkner’s receipt and

possession convictions were based on different child pornography. Unfortunately, because the

record is silent as to which particular images or videos supported Faulkner’s receipt and

possession convictions, we cannot resolve this argument. Accordingly, we remand the case for

further proceedings so that the district court can determine whether Faulkner’s receipt and

possession offenses are based on the same child pornography or different child pornography.

       1
          Our discussion here applies only to the electronic transfer of pornographic images. We
need not decide whether the Double Jeopardy Clause permits separate convictions for receipt and
possession of child pornography if the defendant received a particular physical copy of an image,
but later possessed a different physical copy of that same image.
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See Dudeck, 657 F.3d at 433 (remanding the case to the district court “for a determination as to

whether Counts One, Two and Three are supported by separate conduct or images”).

          Given our ruling on the Double Jeopardy issue, we do not reach Faulkner’s remaining

claims.

                                        CONCLUSION

          For the foregoing reasons, we REMAND the case for further proceedings so that the

district court can determine whether Faulkner’s receipt and possession offenses are based on the

same child pornography or different child pornography.




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                                           No. 17-5604


       MERRITT, Circuit Judge, concurring. I am a bit confused about how the district

court got to a 55-year de facto life sentence in this case and about what the Court is ordering the

district court to do on remand, but I do concur in reversing and remanding the case to the district

court for further consideration.

       On the double jeopardy issue discussed in the Court’s opinion, there are no facts in the

record suggesting that the pornographic images “received” by the defendant were any different

from those he continued to possess on his cell phone’s media card. It seems apparent that the

same material “received” was then “possessed.” There are no facts different in the receiving and

possessing charges. The material is the same, and there should not have been double punishment

for the same offense.

       I also think that Count II based on the government’s charge of “attempt” does not state an

offense and ought to be dismissed under Rule 12(b) of the Federal Rules of Criminal Procedure.

The pictures referred to in Count II that the defendant took on July 21 do not support a valid

conviction for “attempt.” In those pictures incorporated in Count II, whatever may have been the

defendant’s “intent,” the two girls shown in the pictures are fully clothed and the pictures could

not reasonably be considered “pornographic.” They may constitute the invasion of the right to

privacy and constitute “harm” in that sense. But I cannot see how taking and distributing

pictures of fully clothed girls could constitute the crime of “attempted” production of child

pornography. See United States v. Sims, 708 F.3d 832, 835 (6th Cir. 2013) (citations omitted)

(conviction requires proof that the defendant “specifically intended to create child pornography”

and “took a substantial step towards the creation of child pornography”). Here the act of taking

the fully clothed pictures makes the completed crime itself impossible. I do agree, however, that

the word “attempt” in this context is vague and could include many things. The rule of lenity in



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interpreting ambiguity counsels against increasing the harshness of the punishment by giving the

crime of “attempt” an expansive interpretation.




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