                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                OCT 5, 2010
                              No. 09-16077                      JOHN LEY
                          Non-Argument Calendar                   CLERK
                        ________________________

                D. C. Docket No. 09-00020-CR-FTM-99-SPC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ROBERT EDWARD HARPER,

                                                          Defendant-Appellant.


                        ________________________

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

                              (October 5, 2010)

Before BLACK, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

     Robert Edward Harper appeals his conviction and sentence for possessing
child pornography, under 18 U.S.C. §§ 2252(a)(4)(b) and 2252(b)(2), and also for

receiving child pornography, under 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1). He

argues that his convictions for receiving and possessing child pornography violate

the Double Jeopardy Clause of the Fifth Amendment. Harper also argues that the

district court erred in applying a two-level sentence enhancement for distributing

child pornography under United States Sentencing Guidelines § 2G2.2(b)(3)(F)

(Nov. 2009), and in denying him a related two-level reduction under

§ 2G2.2(b)(1). For the reasons stated below, we affirm.

                                          I.

      Harper pleaded guilty to one count of knowingly possessing child

pornography, in violation of 18 U.S.C. § 2252(a)(4)(b), as punishable under

§ 2552(b)(2), and two counts of knowingly receiving child pornography, in

violation of 18 U.S.C. § 2552(a)(2), as punishable under § 2552(b)(1). The

indictment stated, in the first count, that Harper knowingly possessed child

pornography “[f]rom a date unknown but by at least April 14, 2008, through on or

about June 10, 2008.” In the second and third counts, the indictment charged that

Harper knowingly received child pornography “[o]n or about April 14, 2008,” and

“[o]n or about April 22, 2008.”

      At Harper’s change of plea hearing, the government filed a Notice of



                                          2
Penalties, Elements and Facts (the “Notice” or “proffer”), which stated the facts the

government would rely on in presenting a prima facie case to a jury. This proffer

stated that Harper knowingly possessed child pornography “[f]rom at least on or

about April 14, 2008, through on or about June 10, 2008,” and that he knowingly

received child pornography “[o]n or about April 14, 2008, and April 22, 2008,”

through a peer-to-peer Internet file sharing program. It further stated that on June

19, 2008, law enforcement agents executed a search warrant, seized Harper’s

computer, and interviewed Harper, who admitted to installing a peer-to-peer file

sharing program, LimeWire, on his computer and using the program to download

child pornography. According to the government’s proffer, an examination of the

computer revealed over 600 images and more than ten videos depicting child

pornography, including two pictures downloaded on May 19, 2008.

      Harper declined to admit all of the facts in the government’s proffer, stating

that much of the conduct described went beyond what was necessary to plead

guilty and instead went to sentence enhancements. Harper did agree, however, to

admit in his own words sufficient facts to plead guilty. During the plea colloquy,

Harper admitted that he downloaded child pornography “a couple times” in April

2008, including specifically on April 14 and April 22, and that he “came into

possession of one or more” items of child pornography “sometime between April



                                          3
14th and June 10th” of 2008. The district court accepted Harper’s plea and found

him guilty on all three counts.

      At his sentencing hearing, Harper objected to the two-level enhancement for

distribution of child pornography under U.S.S.G. § 2G2.2(b)(3)(F). He also argued

that he was entitled to a corresponding two-level reduction in his offense level

under § 2G2.2(b)(1), which applies when “the defendant’s conduct was limited to

the receipt or solicitation” of child pornography, and “the defendant did not intend

to traffic in, or distribute, such material.” It was undisputed that Harper had

downloaded files containing child pornography through LimeWire, which as a

default setting had saved the files into a shared folder that could be accessed

remotely by other users of the program. It was likewise undisputed that there was

no evidence that anyone, including law enforcement, actually accessed the files

from Harper’s shared folder.

      The court overruled Harper’s objection in any event, explaining that the

Application Notes to § 2G2.2 define distribution to include “possession with intent

to distribute,” and that Harper “knew that [access by others] could happen, and, in

fact, . . . that’s how he obtained the child pornography that was on the computer in

the first place.” The court also stated that Harper is “familiar with Limewire, he

knows how the system works, he’s downloaded it, he hasn’t changed the default



                                           4
system, which means he knows that others can come in and share whatever it is,

whether it be child pornographic or otherwise.”

      Upon calculating the guideline range and considering the factors set forth in

18 U.S.C. § 3553(a), the court concluded that the guideline range of 168 to 210

months imprisonment was “just too harsh in this situation.” Harper was sentenced

to 120 months on each of the three counts, to be served concurrently. Harper then

renewed the objection to the guideline calculation, and the court responded:

“Didn’t my sentence moot that? I mean, I didn’t compute that, so I don’t know

what the guideline range would have been otherwise.” Harper explained his view

that “the Court is required to properly calculate the guideline regardless of what the

ultimate sentence is.”

                                          II.

      Harper argues for the first time on appeal that his convictions for possessing

and receiving child pornography violate the Double Jeopardy Clause of the Fifth

Amendment. We usually review de novo whether convictions violate the Double

Jeopardy Clause. United States v. Harvey, 78 F.3d 501, 503 (11th Cir. 1996).

However, “we review issues not properly raised before the district court, such as

the instant one, for plain error.” United States v. Bobb, 577 F.3d 1366, 1371 (11th

Cir. 2009).



                                          5
      As a threshold matter, we must first consider whether Harper waived his

double jeopardy challenge by pleading guilty. “Generally, entering a guilty plea

waives a defendant’s right to all non-jurisdictional challenges to a conviction.”

United States v. Bonilla, 579 F.3d 1233, 1240 (11th Cir. 2009). The Supreme

Court has created a few exceptions, however, including one for certain double

jeopardy challenges. Id. “Where the State is precluded by the United States

Constitution from haling a defendant into court on a charge, federal law requires

that a conviction on that charge be set aside even if the conviction was entered

pursuant to a counseled plea of guilty.” Menna v. New York, 423 U.S. 61, 62, 96

S. Ct. 241, 242 (1975). “[A] defendant does not waive a double jeopardy challenge

when, judged on the basis of the record that existed at the time the guilty plea was

entered, the second count is one the government may not constitutionally

prosecute.” United States v. Smith, 532 F.3d 1125, 1127 (11th Cir. 2008) (citing

United States v. Kaiser, 893 F.2d 1300, 1302 (11th Cir. 1990)). “In other words, a

defendant may challenge his conviction if he does not need to go outside what was

presented at the plea hearing to do so.” Bonilla, 579 F.3d at 1240 (citing United

States v. Broce, 488 U.S. 563, 575–76, 109 S. Ct. 757, 765–66 (1989)).

      In deciding whether Harper waived his double jeopardy challenge, “we must

determine whether his convictions . . . violate the double jeopardy clause’s



                                          6
protection against multiple punishments for the same offense and whether proof of

those violations is inconsistent with the record that existed at the time of the plea.”

Bonilla, 579 F.3d at 1241. The Fifth Amendment of the United States Constitution

declares 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. As such, the Double Jeopardy

Clause “guarantees against . . . multiple punishments for the same offense.” Bobb,

577 F.3d at 1371. We have previously recognized that “even in cases such as this,

where the imposed sentences run concurrently, unlawfully multiplicitous

convictions carry serious collateral consequences that cannot be ignored.” Id. at

1372; see Ball v. United States, 470 U.S. 856, 865, 105 S. Ct. 1668, 1673 (1985).

“As a general proposition, when a defendant has violated two different criminal

statutes, the Double Jeopardy Clause is implicated when both statutes prohibit the

same act or transaction or when one act is a lesser included offense of the other.”

Bobb, 577 F.3d at 1371. “[T]he first step in the double jeopardy analysis is to

determine whether the legislature . . . intended that each violation be a separate

offense.” Garrett v. United States, 471 U.S. 773, 778, 105 S. Ct. 2407, 2411

(1985). The second step is to determine “whether each provision requires proof of

a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304,

52 S. Ct. 180, 182 (1932); see Smith, 532 F.3d at 1128.



                                           7
      Harper argues that possession of child pornography is a lesser included

offense of receiving child pornography. Indeed, in Bobb, this Court held that

possessing child pornography in violation of U.S.C. § 2252A(a)(5)(B) was a lesser

included charge of receiving child pornography under 18 U.S.C. § 2252A(a)(2)(B).

577 F.3d at 1373–74. Even so, we rejected the Bobb defendant’s double jeopardy

challenge, because the indictment stated that the possession offense occurred in

August 2005 while the offense of receiving child pornography occurred in

November 2004. Id. at 1375. Further, the evidence at trial proved that in August

2005, the defendant possessed many additional images beyond those he received in

November 2004. Id. We concluded that “the record show[ed] that the indictment

charged Bobb with two separate offenses, and the Government introduced

evidence sufficient to convict him of those distinct offenses.” Id.

      Because Harper pleaded guilty, we look only to the indictment and the rest

of the record as it existed at the time of the guilty plea to determine whether

Harper’s convictions were for distinct offenses of receiving and possessing child

pornography. See Bonilla, 579 F.3d at 1241. Harper argues that, unlike in Bobb,

the indictment on its face does not allege distinct offenses of receiving and

possessing child pornography, because the offenses overlap such that proof of the

receipt offenses would also establish the possession offense. We recognize that



                                           8
Harper’s indictment could be read to allege possession of child pornography either

as a distinct offense or as a lesser included offense of receiving child pornography.

But where it is unclear whether the indictment charges the defendant with distinct

offenses, we must conclude that no double jeopardy violation appears on its face.

See United States v. Brown, 155 F.3d 431, 435, (4th Cir. 1998) (“If in fact the

district court cannot tell from the record whether the government alleged two

separate conspiracies, it must reinstate [the defendant’s] conviction and

sentence.”); see also Broce, 488 U.S. at 570, 109 S. Ct. at 763. (“The Court of

Appeals erred in concluding that because the indictments did not explicitly state

that the conspiracies were separate, respondents did not concede their separate

nature by pleading guilty to both.”).

      In order for us to conclude that Harper’s double jeopardy challenge has not

been waived, we must determine that “his guilty plea admitted no factual predicate

that sufficed to make irrelevant his double jeopardy claim.” Jackson v. Coalter,

337 F.3d 74, 80 (1st Cir. 2003). Harper contends that he only admitted his

possession of child pornography to the extent necessary to establish the two counts

of receiving child pornography, because the plea colloquy produced only the

admission that he “came into possession of one or more” items of child

pornography “sometime between April 14th and June 10th" of 2008. Even if we



                                          9
accept Harper’s refusal to adopt the facts in the government’s proffer as an

affirmative denial of every fact beyond those admitted in the plea colloquy, it is at

least true that in pleading guilty Harper must have admitted to the elements of the

crimes charged in the indictment. That is, that he possessed child pornography

from “at least April 14, 2008 through on or about June 10, 2008."

      The government’s proffer demonstrated its intent to prove facts necessary to

establish the offense of possession independent of the offenses of receiving child

pornography. In Taylor v. Whitley, 933 F.2d 325, 328 (5th Cir. 1991), where the

defendant argued that he had been convicted of both felony murder and the

underlying felony, the Fifth Circuit concluded that the defendant had waived his

double jeopardy claim by pleading guilty, even where the government had not yet

indicated whether it intended to pursue a theory of felony murder or one of specific

intent murder. See also United States v. Makres, 937 F.2d 1282, 1284–85 (7th Cir.

1991) (holding that no facial double jeopardy claim existed, even where the

government’s proffer at the plea inquiry failed to affirmatively demonstrate facts

establishing that the charges were for distinct offenses). The government’s

argument is even stronger here, where in its proffer it made clear its intent to prove

facts necessary to establish a distinct offense of possession. Specifically, the

proffer included a statement that the forensic examination revealed over 600



                                          10
images and more than ten movies in Harper’s possession, and that at least two of

those images had been downloaded after April 22, 2008. This constituted evidence

sufficient to establish an offense of possession distinct from the receipt offenses,

both in terms of the time of the offenses and the items possessed. See Bobb 577

F.3d at 1375 (holding that defendant was convicted of distinct offenses of receipt

and possession of child pornography, where the indictments indicated the offenses

occurred on different dates and the evidence at trial proved the offenses related to

different items); see also United States v. Irving, 554 F.3d 64, 79 (2d Cir. 2009)

(holding that defendant could be convicted of distinct offenses of receipt and

possession of child pornography where the jury could have concluded that

possession count was predicated on different items of child pornography than the

receipt count).

      In Menna, the Supreme Court explained that

      a counseled plea of guilty is an admission of factual guilt so reliable
      that, where voluntary and intelligent, it quite validly removes the issue
      of factual guilt from the case. . . . A guilty plea, therefore, simply
      renders irrelevant those constitutional violations not logically
      inconsistent with the valid establishment of factual guilt and which do
      not stand in the way of conviction if factual guilt is validly
      established.

423 U.S. at 63 n.2, 96 S. Ct. at 242 n.2. In contrast to Menna, where the defendant

claimed “that the State may not convict [him] no matter how validly his factual



                                          11
guilt is established,” id., Harper essentially takes aim at the factual basis of the

conviction by arguing that he did not admit to facts sufficient to establish a distinct

offense of possession of child pornography. Harper’s argument suggests that, had

the judge inquired directly into facts necessary to establish a distinct offense of

possession, Harper would have denied those facts. But therein lies the problem for

Harper: his claim depends upon his discrediting the factual basis of his conviction.

As the Supreme Court stated in Broce, “a defendant who pleads guilty to two

counts with facial allegations of distinct offenses concede[s] that he has committed

two separate crimes.” 488 U.S. at 570, 109 S. Ct. at 763. We must therefore

conclude that, by pleading guilty, Harper has waived his double jeopardy

challenge.

                                           III.

      Harper also contends that his sentence is procedurally unreasonable because,

by applying the two-level increase for distribution, and denying the corresponding

two-level decrease for conduct limited to receipt or solicitation, the district court

failed to calculate the guideline range correctly. We review the district court’s

findings of fact for clear error, but review de novo its interpretation of the

guidelines and its application of the guidelines to the facts. United States v.

Campbell, 491 F.3d 1306, 1315 (11th Cir. 2007).



                                            12
      After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), district

courts must follow a two-step procedure at sentencing. United States v. Talley,

431 F.3d 784, 786 (11th Cir. 2005). “First, the district court must consult the

Guidelines and correctly calculate the range provided by the Guidelines. Second,

the district court must consider [the 18 U.S.C. § 3553(a)] factors to determine a

reasonable sentence.” Id. (citation omitted).

      At the first step, district courts must “begin all sentencing proceedings by

correctly calculating the applicable guideline range.” United States v. Pugh, 515

F.3d 1179, 1189 (11th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 49,

128 S. Ct. 586, 596 (2007)). “An error in the district court’s calculation of the

Sentencing Guidelines range warrants vacating the sentence, unless the error is

harmless. A Sentencing Guidelines miscalculation is harmless if the district court

would have imposed the same sentence without the error.” United States v.

Barner, 572 F.3d 1239, 1247–48 (11th Cir. 2009) (citation omitted). Thus, if “a

district judge clearly states that he would impose the same sentence, even if he

erred in calculating the guidelines, then any error in the calculation is harmless.”

Id. at 1248; see also United States v. Williams, 431 F.3d 767, 775 (11th Cir. 2005)

(Carnes, J., concurring) (“The Supreme Court and this Court have long recognized

that it is not necessary to decide guidelines issues or remand cases for new



                                          13
sentence proceedings where the guidelines error, if any, did not affect the

sentence.”). Here, in responding to Harper’s objection to the guideline calculation

by saying “Didn’t my sentence moot that?” the district court sufficiently expressed

that the 120-month sentence was not based on a guideline calculation.

      Before concluding that any error in the guideline calculation would be

harmless, we must also consider whether the sentence imposed would otherwise be

procedurally reasonable, assuming the guideline range advanced by Harper.

United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006). If we accept that

the court did err as Harper claims, his offense level would be decreased from 34 to

30, which combined with his criminal history category of II would produce a

guideline range of 108 to 135 months imprisonment. His 120-month sentence

therefore falls squarely within the guideline range advanced by Harper. Also,

while the district court did not explicitly calculate this alternative guideline range,

it did give careful and express consideration to the guidelines, and thoroughly

considered and addressed Harper’s objections to the guideline calculation. Finally,

the district expressly stated it had considered the statutory factors set out in 18

U.S.C. § 3553(a) and discussed those factors to the extent necessary to explain the

sentence imposed. Thus even assuming the error which Harper asserts, it would be

harmless.



                                           14
    For each of these reasons, Harper’s convictions and sentences are

AFFIRMED.




                                      15
