FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
Benjamin L. Falkner, with whom Krasnoo, Klehm & Falkner
LLP was on brief, for appellant.
Carlos Reyes-Ramos, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United
States Attorney, Chief, Appellate Division, were on brief,
Kayatta and Barron, Circuit Judges, and McAuliffe, [*] District Judge.
BARRON, Circuit Judge.
Gall pleaded guilty to one count of possessing child
pornography, in violation of 18 U.S.C. §
2252(a)(4)(B). For that offense, the
District Court sentenced him to 135 months in prison and 15
years of supervised release, subject to various conditions.
Gall challenges his conviction, his prison sentence, and one
of his conditions of supervised relief. We affirm the
conviction and prison sentence, but vacate the challenged
supervised release condition. We therefore remand for partial
October 2013, officers of the Child Exploitation
Investigations Group in San Juan, Puerto Rico, received
information that six images of child pornography had been
uploaded to the internet from two email addresses that Gall
used. Based on that information, the officers
obtained a search warrant for Gall's residence.
the officers executed the warrant, they found that Gall
possessed over 2, 000 images and videos of child pornography.
The pornographic material included images of prepubescent
was charged with one count of possessing child pornography,
in violation of 18 U.S.C. § 2252(a)(4)(B), and eight
counts of transporting child pornography, in violation of 18
U.S.C. § 2252(a)(1). With respect to the possession
count, the indictment alleged that the child pornography Gall
possessed included depictions of "prepubescent children
engaging in sexually explicit conduct."
person convicted of possessing child pornography is generally
subject to a ten-year maximum sentence. 18 U.S.C. §
2252(b)(2). The maximum sentence is higher, however, "if
any visual depiction involved in the offense involved a
prepubescent minor or a minor who had not attained 12 years
of age." Id. In that case, the maximum term of
imprisonment is twenty years. Id.
chose not to go to trial. Instead, he reached a plea
agreement with the government. Under the agreement, he would
plead guilty to "COUNT ONE of the indictment" --
the possession count -- and the government would drop the
eight counts of transporting child pornography.
describing the possession count, Gall's plea agreement
did not expressly reference the fact, included in the
indictment, that the child pornography that Gall possessed
included images of prepubescent children. Nor was there any
express reference to images of prepubescent children in the
section of the plea agreement that recounted the factual
basis for Gall's plea. Moreover, the agreement stated that the
"maximum penalt[y]" for the count to which Gall
would plead guilty was ten years in prison, which is the
maximum prison sentence for possession of child pornography
that does not depict prepubescent children. Id.
Gall's change-of-plea hearing, the District Court advised
Gall that he was pleading guilty to possession of child
pornography and that the maximum available penalty was ten
years' imprisonment. Gall agreed to the factual basis for
the plea -- which, like the plea agreement, included no
express statement that Gall possessed images of prepubescent
children --and the District Court accepted Gall's guilty
probation office then prepared the presentence report (PSR),
and the parties appeared for sentencing. Before sentencing
began, however, Gall's counsel notified the District
Court that "there is an issue that I just found out,
that I only noticed." Defense counsel continued,
"[w]hen this Defendant pled guilty, he pled guilty to
possession of child porn." Defense counsel then asked to
go "[o]ff the record, if I can, " and a sidebar
the sidebar, the District Court then stated on the record:
Based on what we discussed at sidebar off the record, it
appears that at the change of plea hearing, Mr. Gall was not
advised correctly as to the minimum and maximum terms of
imprisonment to which he may be subject. So, therefore, we
are going to have to start all over again.
So, [defense counsel], you said we could have another change
of plea hearing sometime next week.
District Court also stated that it "underst[ood]"
that "[t]he terms of the plea . . . will be the
counsel agreed that "the terms of the plea agreement
[would be] exactly the same" and that "[i]t's
basically changing a sentence." And the District Court
at that point added, "[b]ut certain matters have to be
explained to Mr. Gall during the change of plea hearing, and
we will have to do that."
the parties reconvened for a second change-of-plea hearing,
the government noted "for the purposes of the
record" that there had been "an error" by the
government "in the drafting" of the plea agreement,
"specifically the maximum penalty for Count One in this
case." The government stated that although the plea
agreement "originally said [the maximum sentence] was 10
years, . . . it's actually 20 years, given the way that
it's charged, " that is, "[b]ecause this
involves [images of] prepubescent minors." The
government noted that the parties had amended the plea
agreement to state that the maximum sentence for Gall's
offense was twenty years, not ten.
District Court asked defense counsel whether she was "in
agreement with what [the prosecutor] has indicated." She
answered that she was. Gall also answered affirmatively when
asked whether he "underst[ood] that because the
indictment charges pornography involving prepubescent minors,
the term of imprisonment is not more than 20 years rather
than [not more than] 10 years." In addition, Gall agreed
that he was "willing to plead guilty with these
amendments to the plea agreement." Finally, Gall and
defense counsel both agreed that it was not "necessary
to go through the plea agreement colloquy" and that the
District Court could go "straight to sentencing."
sentencing, the District Court calculated Gall's
sentencing range under the United States Sentencing
Guidelines as 135 to 168 months -- the same calculation
contained in the PSR, to which no party had objected. The
District Court sentenced Gall to 135 months in prison and 15
years of supervised release. Gall now appeals both the
conviction and the sentence.
challenging his conviction, Gall first argues that the
District Court violated the Double Jeopardy Clause of the
United States Constitution when it "effectively
vacat[ed]" his first guilty plea and permitted the
prosecution to continue via the second change-of-plea
hearing. In making that argument, Gall contends that this
first plea was to possession of child pornography and not to
possession of prepubescent child pornography. From that
premise, he then argues that the Double Jeopardy Clause
barred the District Court from vacating that first plea and
accepting the second. He thus contends that we must vacate
the second plea and remand so that he may be resentenced in
accordance with his first plea.
government responds that Gall mischaracterizes what happened
below. The government insists that Gall's initial plea
was to possessing prepubescent child pornography. The
government further contends that, by holding a second
change-of-plea hearing, the District Court merely ensured
that Gall was properly advised -- as he had not been at the