                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-11-2009

USA v. Terpack
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1329




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"USA v. Terpack" (2009). 2009 Decisions. Paper 1759.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-1329


                            UNITED STATES OF AMERICA

                                             v.

                                WALTER M. TERPACK,
                                                Appellant.




                     On Appeal from the United States District Court
                             for the District of New Jersey
                                 (D. C. No. 05-cr-00877)
                      District Judge: Hon. Dennis M. Cavanaugh




                       Submitted under Third Circuit LAR 34.1(a)
                                   on June 26, 2008

                Before: SLOVITER, BARRY and ROTH, Circuit Judge

                             (Opinion filed: March 11, 2009)




                                      OPINION


ROTH, Circuit Judge:

       Walter Terpack appeals from a final judgment of conviction and sentence entered

by the District Court on two counts of sexual exploitation of minors, in violation of 18
U.S.C. § § 2252A(a)(2)(B) and 2252A(a)(5)(B). Terpack’s court-appointed counsel

believed that any appeal was frivolous. He filed an Anders brief and moved to withdraw

as counsel for Terpack. See Anders v. California, 386 U.S. 738 (1967). The Court,

however, determined that because Terpack entered a guilty plea to possession of images

of child pornography under 18 U.S.C. § 2252A(a)(5)(B) and to the lesser included offense

of receipt of the same images under 18 U.S.C. § 2252A(a)(2), the entry of separate

convictions for the same offense contravened the double jeopardy clause. See United

States v. Miller, 527 F.3d 54, 58 (3d Cir. 2008). Because the double jeopardy concern is

apparent on the face of the indictment and from the record below, see United States v.

Pollen, 978 F.2d 78, 84 (3d Cir. 1992), both Terpack and the government have agreed

that the sentence imposed should be vacated and the case remanded for resentencing.

       As for the judgment of conviction, we conclude that Terpack’s counsel did comply

with Anders as he conscientiously examined the record and determined that there were no

non-frivolous issues for review. See Anders at 744. Further, he identified any “issue[s]

arguably supporting the appeal even though the appeal was wholly frivolous,” Smith v.

Robbins, 528 U.S. 259, 282, 285 (2000), and he “explain[ed] . . . why the issues [were]

frivolous”, United States v. Marvin, 211 F.3d 778, 780-81 (3d Cir. 2000).

       On January 14, 2005, Terpack consented to a search of his apartment by Bureau of

Immigration and Customs Enforcement agents. The agents, conducting an investigation

into child exploitation, found approximately 20 videos and 60 still images of child



                                            2
pornography on Terpack’s computer. Terpack waived his Miranda rights and admitted

using his computer to receive and distribute child pornography.

       On May 31, 2006, without having entered into a formal plea agreement with the

government, Terpack pled guilty. His offense level of 35 was calculated by the Probation

Office in its formulation of his Presentence Investigation Report (PSR). On January 22,

2007, the District Court, finding that Terpack’s offense level overstated the seriousness of

his offenses, granted him a 43-month downward departure. Terpack’s final sentence was

125 months on Count One and 120 months on Count Two, to be served concurrently.

Terpak’s counsel appealed.

       Terpack was provided with counsel’s Anders brief and filed a pro se brief.

Terpack’s first claim involves his sentencing and we will not consider it because the case

will be remanded for resentencing. We will leave it to the District Court to determine

what is to be considered at resentencing.

       Terpack’s second claim is that his consent to the search of his apartment was

elicited under false pretenses.1 However, Terpack waived his right to raise this challenge

by pleading guilty. See United States v. Ptomey, 366 F.2d 759, 760 (3d Cir. 1966) (“A

plea of guilty is a waiver of all nonjurisdictional defects and defenses and constitutes an

admission of guilt.”).

       1

 Terpack asserts that he never invited the agents in to search, but rather that he allowed
them in because they told him that there were two missing, abducted children and that
they were possibly in his apartment.

                                              3
III. Conclusion

      For the foregoing reasons, the District Court’s judgment of conviction will be

affirmed, the judgment of sentence is vacated and the case remanded to the District Court

for resentencing. Counsel’s Anders motion to withdraw will be denied pending

resentencing.




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