United States Court of Appeals

for the Fifth Circuit

No. 20-60730

United States of America, 

Plaintiff—Appellee,

versus

Taryn Goin Naidoo, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:18-CR-141-1

Before King, Smith, and Haynes, Circuit Judges.

Per Curiam:

Taryn Goin Naidoo was convicted of three counts of possession of 

child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) & (b)(2). On 

appeal, Naidoo raises challenges related to the district court’s evidentiary 

rulings, jury instructions, and sentencing. For the reasons that follow, we

VACATE Naidoo’s Count Two conviction and sentence under 18 U.S.C. 

§ 2252(a)(4)(B) and (b)(2), and MODIFY the district court’s judgment to 

impose only a $200 special assessment and a $10,000 assessment under the

Justice for Victims of Trafficking Act. In all other respects, we AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

April 19, 2021

Lyle W. Cayce

Clerk

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I.

Defendant-appellant Taryn Goin Naidoo was charged in a 

superseding indictment with three counts of possession of visual depictions 

involving the use of a minor engaging in sexually explicit conduct, in violation 

of 18 U.S.C. § 2252(a)(4)(B) & (b)(2). Count One related to Naidoo’s 

possession of a sixteen-gigabyte SanDisk Micro SD card containing such 

images from on or about November 17, 2016 through on or about July 10, 

2017. Count Two related to Naidoo’s possession of a sixty-four-gigabyte 

Lexar Micro SD card containing such images on or about July 10, 2017. Count 

Three related to Naidoo’s possession of a Western Digital My Passport 

external hard drive containing such images on or about October 4, 2018. 

Prior to his trial, Naidoo’s counsel attempted to exclude the 

admission of any sexually explicit material depicting minors, offering to 

stipulate that all relevant images were depictions of child pornography. The 

district court denied Naidoo’s motion but cautioned that it would not 

“license[] the Government to overwhelm the jury with disturbing videos and 

images.” At trial, over the defense’s running objection, the court permitted

the Government to present a set of forty-six images of child pornography 

retrieved from an HP laptop found in Naidoo’s residence and representative 

samples of images retrieved from the SD cards and external hard drive. 

Notably, some of the images in these batches were duplications, thus 

demonstrating connections between the devices in Naidoo’s residence. The 

Government was also permitted to show limited clips of three pornographic 

videos and to present story boards that demonstrated the overall contents of 

those three videos and one other.

1

1 A short video excerpt of this final video was, however, also entered into evidence.

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Also prior to trial, Naidoo’s defense counsel identified two mental 

health experts whom the defense intended to call to testify about Naidoo’s 

mental state. The first expert, Dr. Criss Lott, was prepared to testify that 

Naidoo had no sexual arousal to children, knew it was wrong to engage in 

sexual activity with an underage person, and was sexually attracted to 

women. The second expert, Dr. Susan Niemann-Hightower, was prepared 

to testify that Naidoo was heterosexual, enjoyed watching “mainstream 

pornography involving consenting adults,” and showed “no signs of atypical 

thoughts or deviant tendencies.”2 The district court granted the 

Government’s motion to preclude the testimony, reasoning that, though the 

proffered testimony was potentially relevant to the issue of Naidoo’s 

knowledge, it presented a special risk of jury confusion. The court made clear 

that its ruling “cut[] both ways” and the Government was also barred from 

offering a “contrary expert opinion” about Naidoo’s sexual predilections. 

On the basis of this ruling, Naidoo objected at trial when the Government 

introduced evidence that he had accessed written stories online (referred to 

as the “Kristen stories”) describing sexual encounters between minors and 

adults. The court overruled the objection.

Naidoo’s trial ended on January 10, 2020, with a guilty verdict on all 

counts. With enhancements, the presentence investigation report calculated 

an offense level of 33, which—together with a criminal history category of 

2 At sentencing, Dr. Lott testified as to personality testing that he performed to 

assess whether Naidoo showed signs of psychopathy, as well as other assessments he 

performed. With regard to Naidoo’s arousal to child pornography, Dr. Lott explained that 

his opinion “was strictly based on [Naidoo’s] report to [him].” Dr. Niemann-Hightower 

also testified and explained that she only performed an assessment related to Naidoo’s risk 

of hurting himself and did no forensic analysis. None of the experts performed any penile 

plethysmograph (PPG) tests designed to detect sexual deviancies, so we need not address 

whether any such PPG testing would have been more relevant than the opinions provided 

by these experts.

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II—resulted in a sentencing range of 151 to 188 months. The district court 

sentenced Naidoo to three concurrent terms of 170 months’ imprisonment, 

to be followed by 15 years of supervised release. As a special condition of 

supervised release, the court prohibited Naidoo “from using any Internetcapable device, or computer, . . . unless he is granted permission or authority 

in advance by the supervising U.S. Probation Officer.” The court also 

imposed $32,000 in restitution, a $100 special assessment per count of 

conviction for a total of $300, a $5,000 assessment per count of conviction

under the Justice for Victims of Trafficking Act (“JVTA”) for a total of 

$15,000, and a $10,000 fine. This appeal followed.

II.

Naidoo first challenges a variety of evidentiary rulings. These include 

the district court’s decisions to (1) preclude testimony by Naidoo’s experts, 

(2) admit images and videos of child pornography, and (3) admit evidence of 

pornographic stories viewed by Naidoo. We address each argument in turn, 

applying a deferential abuse of discretion standard of review. See United 

States v. Guidry, 456 F.3d 493, 501 (5th Cir. 2006) (“In a criminal case, we 

review the district court’s evidentiary rulings under an abuse of discretion 

standard.”); see also United States v. Dixon, 413 F.3d 520, 523 (5th Cir. 2005) 

(“We review a district court’s decision to exclude expert testimony only for 

abuse of discretion.”). 

A. Naidoo’s Expert Testimony

Naidoo contends that his lack of motive to possess child pornography 

was central to his defense. Accordingly, he sought to introduce expert 

testimony that he had no sexual interest in children and thus lacked such a

motive. However, Naidoo was precluded from doing so by the district court 

after it concluded that, under Federal Rule of Evidence 403, the probative 

value of such testimony was outweighed by the special risk of jury confusion.

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Federal Rule of Evidence 403 provides that the court “may exclude 

relevant evidence if its probative value is substantially outweighed by a 

danger of . . . confusing the issues.” A district court’s decision under Federal 

Rule of Evidence 403 is reviewed with “‘an especially high level of deference 

to’ the district court, with reversal called for only ‘rarely and only when there 

has been a clear abuse of discretion.’” United States v. Dillon, 532 F.3d 379, 

387 (5th Cir. 2008) (quoting United States v. Fields, 483 F.3d 313, 354 (5th 

Cir. 2007)). Similarly, a trial court is afforded “‘wide latitude’ and ‘broad 

discretion’ to exclude expert testimony.” United States v. Reed, 908 F.3d 102, 

117 (5th Cir. 2018), cert. denied, 139 S. Ct. 2655 (2019) and 139 S. Ct. 2658 

(2019) (quoting Williams v. Manitowoc Cranes, LLC, 898 F.3d 607, 625 (5th 

Cir. 2018)). Accordingly, we “will not disturb the court’s exercise of its 

discretion to exclude such testimony unless the exclusion was ‘manifestly 

erroneous’—that is, unless it ‘amounts to a complete disregard of the 

controlling law.’” Id. Any such error in admitting evidence under Rule 403 

is subject to “harmless error review,” and reversal is not warranted “unless 

there is a ‘reasonable possibility that the improperly admitted evidence 

contributed to the conviction.’” United States v. Williams, 620 F.3d 483, 492 

(5th Cir. 2010) (quoting United States v. Mendoza–Medina, 346 F.3d 121, 127 

(5th Cir. 2003)). 

Naidoo has not shown that the district court manifestly erred in 

finding that the risk of jury confusion caused by Naidoo’s proffered expert 

testimony outweighed its probative value. The First Circuit has confronted a 

similar issue. See United States v. Pires, 642 F.3d 1 (1st Cir. 2011). The court 

recognized that, where the only issue is whether a defendant knowingly 

possessed child pornography, expert testimony on a defendant’s sexuality, 

though possessing some probative value, has “diminished relevance.” Id. at 

11. Indeed, “[i]n enacting the federal child pornography statute, Congress 

proscribed certain conduct without regard to the underlying motive.” Id.; see 

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also United States v. Matthews, 209 F.3d 338, 351 (4th Cir. 2000) (explaining 

that § 2252 does not require that “a defendant act[] with a bad motive or evil 

intent,” such as to “satisfy some prurient interest”). Rather, 18 U.S.C. 

§ 2252(a)(4)(B) prohibits an individual from “knowingly” possessing 

material containing a visual depiction of a minor engaging in sexually explicit 

conduct. The court further noted that “because of an expert’s stature qua

expert, jurors may assign more weight to expert testimony than it deserves.” 

Pires, 642 F.3d at 12. Accordingly, expert testimony regarding the 

defendant’s sexuality could “confuse the jury and divert its attention from 

the central question in the case”—whether the defendant knowingly 

possessed child pornography. Pires, 642 F.3d at 12. 

Here, after considering the proffered testimony and performing the 

requisite balancing under Rule 403, the district court came to the same 

conclusion that the risk of jury confusion, in this particular case, outweighed 

the probative value of such evidence. Indeed, the district court reasoned that 

Naidoo’s proffered testimony had “some relevance” since an individual 

would “presumably be less likely to knowingly possess child pornography if 

he is not sexually attracted to minors.” The court found, however, that such 

probative value was limited in light of the requisite mens rea and expressed 

concern that the jurors would afford the expert testimony outsized weight. 

As in Pires, the court thus concluded that the expert testimony presented a 

special risk of jury confusion that substantially outweighed its probative 

value. Based on the foregoing, we cannot say that the district court’s decision 

to exclude the relevant expert testimony was manifestly erroneous. 

B. Admission of Images and Videos of Child Pornography

Naidoo argues that the Government displayed an unnecessarily large 

volume of child pornography to the jury. Naidoo emphasizes that he offered 

to stipulate to the presence of child pornography on the relevant devices, and 

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contends that the Government needed only to prove that he possessed at 

least one image of child pornography on each of the three devices. 

We previously confronted the admissibility of child pornography 

under Rule 403 in United States v. Caldwell, 586 F.3d 338, 342 (5th Cir. 2009).

In that case, we explained that a defendant’s stipulation “does not have the 

same evidentiary value as actually seeing the particular explicit conduct of 

the specific minors.” Id. at 343; see also Old Chief v. United States, 519 U.S. 

172, 183 (1997) (“[A] defendant’s Rule 403 objection offering to concede a 

point generally cannot prevail over the Government’s choice to offer 

evidence showing guilt and all the circumstances surrounding the offense.”). 

Indeed, we reasoned that graphic evidence of child pornography “comes 

together with the remaining evidence to form a narrative to gain momentum 

to support jurors’ inferences regarding the defendant’s guilt.” Caldwell, 586 

F.3d at 343. Moreover, “[j]urors have expectations as to the narrative that 

will unfold in the courtroom,” and “[i]f those expectations are not met, 

jurors may very well punish the party who disappoints by drawing a negative 

inference.” Id.

Moreover, the use of representative samples of child pornography in 

these cases has been broadly upheld. See United States v. Rodriguez, 797 F. 

App’x 475, 480 (11th Cir. 2019) (collecting cases); see also United States v. 

Morales-Aldahondo, 524 F.3d 115, 120 (1st Cir. 2008) (explaining that part of 

the Government’s “full presentation” of its case included “the presentation 

of a sample of images, and the expert’s detailed description of how they were 

organized”). Accordingly, Naidoo’s contention that the district court should 

have accepted his stipulation or limited the Government to displaying one 

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image per device is unavailing.3

There is no question that the pornography shown was a limited 

portion of the thousands of images and hundreds of videos for which Naidoo 

was held accountable. Moreover, it is clear that the number of images 

contributed to the narrative strength of the Government’s case. In particular, 

an aspect of the Government’s “overall narrative” entailed demonstrating 

links between the devices in Naidoo’s possession by showing that some 

images appeared on more than one device. Caldwell, 586 F.3d at 343. The 

Government thus sought to rebut Naidoo’s attempt to cast blame for the 

images on his wife and to establish Naidoo’s knowledge—an issue which was 

not covered by Naidoo’s proposed stipulation. See, e.g., id. at 343 (noting that 

“the specific videos published . . . reflected how likely it was that the 

defendant knew that the video depicted child pornography (which knowledge 

the stipulation did not mention)”). 

Based on the foregoing, we find that the district court did not abuse its 

discretion by admitting into evidence the images and video clips of child 

pornography. 

C. Admission of Pornographic Stories

Naidoo argues that the district court erred in allowing the 

Government to introduce evidence that Naidoo’s tablet device was used to 

visit a website containing written stories depicting minors involved in sexual 

3 Naidoo also takes issue with the Government’s use of a video that it had 

determined was “extremely disturbing” and “one of the worst videos that the forensic 

examiner [had] ever encountered.” Even assuming that the admission of this particular 

video was in error, that error was harmless in light of the overwhelming evidence of 

Naidoo’s guilt. See Mendoza-Medina, 346 F.3d at 129 (finding erroneously admitted 

evidence to be harmless where the evidence against the defendant was “substantial”); see 

also Williams, 620 F.3d at 493 (declining to reverse error in applying Rule 403 “in light of 

the substantial evidence of [the defendant’s] guilt presented at trial”). 

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acts. Naidoo points out that the Government defended the Kristen stories as 

supporting that child pornography “was something [Naidoo] had interest 

in,” and thus contends that the evidence was used for character propensity 

purposes in violation of Federal Rule of Evidence 404(b). For its part, the 

district court found that the stories went to Naidoo’s “knowledge and 

intent” and thus admitted them.4 Finally, Naidoo argues that the district 

court reversibly erred by failing to read the stories before admitting them into 

evidence.

Federal Rule of Evidence 404(b) prohibits the use of “[e]vidence of 

any other crime, wrong, or act” to prove “a person’s character in order to 

show that on a particular occasion the person acted in accordance with the 

character.” Fed. R. Evid. 404(b)(1). However, it permits such evidence

“for another purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or lack of 

accident.” Fed. R. Evid. 404(b)(2).

This court applies a two-pronged inquiry to evaluate the admissibility 

of evidence under Rule 404(b):

First, it must be determined that the extrinsic 

offense evidence is relevant to an issue other than 

the defendant’s character. Second, the evidence 

must possess probative value that is not 

substantially outweighed by its undue prejudice 

4Contrary to Naidoo’s repeated assertions, the district court’s decision did not run 

contrary to its pre-trial ruling barring both sides from introducing “expert testimony about 

the defendant’s sexual predilections.” The district court made this distinction clear when 

it explained that there was “a difference between a medical opinion and an actual visitation 

on a website.” As the Kristen stories were not offered as “expert opinion” about Naidoo’s 

sexual predilections, the district court’s pre-trial ruling was not implicated. 

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and must meet the other requirements of Rule 

403.

United States v. Grimes, 244 F.3d 375, 384 (5th Cir. 2001) (quoting United

States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc)).

We have previously confronted the admission of pornographic 

narratives in a child pornography possession case. In United States v. Grimes, 

we held that pornographic stories involving minors were “highly relevant”

to the charge of possession of child pornography and “would help show that 

the possession of the photographs was unlikely an accident when a person 

was also downloading narratives that involved sexual contact between adults 

and minors.” 244 F.3d at 384 & n.18. However, we found reversible error on 

the second prong of the review outlined above. Id. at 385. Specifically, we 

found that the narratives were “of a different sexual nature from the 

photographs” and were “exceedingly prejudicial” because of their 

“inflammatory nature.” Id. at 384–85. In particular, we noted that, while the 

admitted images “depict[ed] no violence,” the stories were “vile in their 

graphic and violent nature.” Id. at 385 (explaining that the narratives 

described “young girls in chains, a young girl in handcuffs, and references to 

blood”). 

This precedent makes clear that, with regard to the first prong of our 

review, the Kristen stories were relevant to an issue other than Naidoo’s 

character. As this court has repeatedly held, even legal pornographic 

materials may “show that the possession of the [illegal] photographs was 

unlikely an accident.” Id. at 384 n.18; see also United States v. Layne, 43 F.3d 

127, 134 (5th Cir. 1995). 

Moving to the second prong, Naidoo argues that the narratives in this 

case were unduly prejudicial because they depicted incestuous sexual activity 

involving minors and adults. However, Naidoo cannot show that the 

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narratives contained the kind of “exceedingly prejudicial” or 

“inflammatory” acts of violence that were at issue in Grimes. Grimes, 244 

F.3d at 384. Indeed, subsequent to our decision in Grimes, we have explained 

that its ruling on the issue of prejudice was “the exception, not the rule” and 

emphasized that the narratives in that case “involved gruesome violence.” 

Caldwell, 586 F.3d at 345. Nor does Naidoo attempt to argue that the

narratives were more prejudicial or “of a different sexual nature from the 

photographs” that were admitted. Grimes, 244 F.3d at 385. Therefore, he has 

not shown that the prejudicial nature of the stories outweighed their 

probative value.

Moreover, the district court was careful to limit the amount of such 

evidence that was offered and included an appropriate instruction on the 

relevance of such evidence in the jury instructions.5 See Layne, 43 F.3d at 134.

Based on the foregoing, the district court did not abuse its discretion by 

admitting the two pornographic narratives. 

III.

Naidoo next raises challenges to multiple jury instructions given by 

the district court. Specifically, Naidoo objects to instructions regarding 

evidence of “similar acts” and the meaning of “on or about.” “We review a 

district court’s jury instructions for abuse of discretion.” United States v. 

Sila, 978 F.3d 264, 267 (5th Cir. 2020). We “will not reverse if the court’s 

charge, viewed in its entirety, is a correct statement of the law which clearly 

5 To the extent Naidoo challenges the district court’s failure to inspect the 

narratives before admitting them into evidence, he identifies, at most, harmless error. 

Indeed, the case Naidoo relies upon found reversible error where the admitted stories were 

not only “depraved” and prejudicial but also “irrelevant.” United States v. Curtin, 489 

F.3d 935, 958 (9th Cir. 2007) (en banc). Assuming arguendo that the district court erred in 

failing to scrutinize the stories before their admission, any such error was harmless.

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instructs jurors as to the relevant principles of law.” Id. (quoting United 

States v. Hernandez, 92 F.3d 309, 311 (5th Cir. 1996)).

A. Instruction Regarding “Similar Acts”

Naidoo argues that the jury should not have been instructed as to the 

purposes for which evidence of similar acts may be considered and contends 

that the instruction improperly directed the jury to consider the Kristen 

stories as similar acts relevant to his motive. Naidoo again argues that the 

district court’s pre-trial ruling foreclosed any evidence related to his motive. 

Naidoo has not shown that the district court abused its discretion by 

instructing the jury on the relevance of similar acts. Contrary to Naidoo’s 

assertion, the instruction was indeed a principle of law “applicable to the 

factual issues confronting [the jury].” United States v. Daniel, 933 F.3d 370, 

380 (5th Cir. 2019). Nothing in the district court’s pre-trial order precluded 

such evidence from being introduced for a permissible purpose such as 

“proving motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake, or lack of accident.” Fed. R. Evid.404(b)(2).

Rather, the court merely barred both sides from offering “expert testimony 

about the defendant’s sexual predilections” because of the risk of jury 

confusion. As explained supra, the district court did not act inconsistently

with this ruling when it admitted the Kristen stories, and it did not err when 

instructing the jury on the limited purposes for which such extrinsic evidence 

can be considered. 

B. Instruction Regarding “On or About”

Next, Naidoo argues that the district court erred in responding to a 

jury question regarding the dates specified in Count Two of the superseding 

indictment. Count Two charged Naidoo with possession of the Lexar SD 

card containing child pornography “on or about July 10, 2017.” In his closing 

argument, Naidoo’s counsel argued that the jury should acquit Naidoo on 

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this count because the evidence showed that Naidoo was hundreds of miles 

away from the SD card on July 10. Naidoo emphasizes that this argument 

prompted the Government to respond in its rebuttal argument by citing

evidence that Naidoo used the device as early as December 2015. The jury 

subsequently sent a note to the court asking: “Are we considering the verdict 

based on the dates on the indictment?” The court instructed the jury, over 

the objection of defense counsel, on the meaning of the phrase “on or about”

in the superseding indictment, explaining that “[t]he government does not 

have to prove that the crime was committed on that exact date, so long as the 

government proves beyond a reasonable doubt that the defendant committed 

the crimes on a date reasonably near the date stated in the indictment.” Now,

Naidoo claims that his trial counsel “exposed a fatal flaw in . . . count two,” 

the flaw was “recognized by the jury,” and the court’s instruction 

“resurrected the count.” We disagree. 

A district court enjoys “wide latitude in deciding how to respond to 

questions from a jury.” United States v. Hale, 685 F.3d 522, 544 (5th Cir. 

2012) (quoting United States v. Cantu, 185 F.3d 298, 305 (5th Cir. 1999)). 

“Supplemental instructions must be ‘reasonably responsive’ and ‘allow[] 

the jury to understand the issue presented to it.’” Id. (quoting United States 

v. Mann, 161 F.3d 840, 864 (5th Cir. 1998)). Naidoo’s argument is apparently 

premised on the mistaken impression that his trial counsel exposed a flaw in 

the Government’s case by misstating the terms of the superseding 

indictment. While counsel stated that Naidoo was charged with possession 

of the Lexar SD card “on July 10, 2017,” the indictment actually charged him 

with possession “on or about July 10, 2017.” Far from fixing a mistake 

committed by the Government in drafting the superseding indictment, the 

district court’s instruction merely explained the meaning of “on or about.”

See Pattern Jury Instr. 5th Cir. 1.19 (2019) (“On or about”); see 

also Fed. R. Crim. P. 30(c) (“The court may instruct the jury before or 

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after the arguments are completed, or at both times.”). Indeed, the district 

court made clear that it was correcting its own mistake in not previously 

including the instruction. The instruction was thus “reasonably responsive” 

to the jury’s question regarding the significance of the dates in the 

superseding indictment, and we find no error. Hale, 685 F.3d at 544. 

IV.

Finally, Naidoo raises several challenges to his sentencing. First, 

Naidoo contends that Counts One and Two of the superseding indictment 

are multiplicitous.

6 Naidoo also argues that the district court imposed an 

unreasonable sentence by failing to reject Guidelines enhancements, failing 

to avoid sentencing disparities, and imposing a condition of supervised 

release unreasonably restricting access to the Internet. We address each 

argument in turn. 

A. Multiplicity of Counts One and Two

Naidoo argues that Counts One and Two of the superseding 

indictment are multiplicitous as they charge possession of child pornography 

on overlapping dates.

7 The Government responds by pointing out that, 

notwithstanding the overlap, Count One charged Naidoo with possession 

across a range of dates and argues that the evidence at trial showed that the 

pornography had been placed on the relevant devices at different dates. The 

6 Naidoo attempts to raise this issue both as a standalone argument and as a 

separate challenge to his sentence. However, because the issue of multiplicity was only 

raised at sentencing and not in a pre-trial motion, Naidoo has only preserved a complaint 

about the multiplicity of his sentences rather than the multiplicity of the indictment. See

United States v. Galvan, 949 F.2d 777, 781 (5th Cir. 1991).

7

In response to Naidoo’s multiplicity-based objection at sentencing, the district 

court stated that it did not see the issue as relevant to its Guidelines calculations and thus 

overruled the objection. 

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Government further contends that the relevant actus reus was Naidoo’s 

possession of two distinct SD cards charged in each count. 

The Double Jeopardy Clause of the Fifth Amendment protects 

individuals against multiple criminal punishments for the same offense. U.S. 

Const. amend. V. An indictment is “multiplicitous,” and in violation of 

the Double Jeopardy Clause, “if it charges a single offense in separate 

counts.” United States v. Woerner, 709 F.3d 527, 538 (5th Cir. 2013). As 

relevant here, one type of multiplicity challenge may arise “when charges for 

multiple violations of the same statute are predicated on arguably the same 

criminal conduct.” Id. at 539. In such a case, we inquire “whether separate 

and distinct prohibited acts, made punishable by law, have been committed.” 

Id. (quoting United States v. Planck, 493 F.3d 501, 503 (5th Cir. 2007)). The 

relevant test has two steps: “[f]irst, we look to the statute charged to 

ascertain the ‘allowable unit of prosecution,’ or the actus reus of the crime.” 

Id. (quoting United States v. Reedy, 304 F.3d 358, 365 (5th Cir. 2002)). 

“Congress’s intent is paramount on this point: the legislature may castigate 

a particular act by exposing the actor to several prosecutions and 

punishments, or it may specify that the act should only be subject to a single 

unit of prosecution.” Id. at 539–40 (quoting United States v. Chiaradio, 684 

F.3d 265, 272 (1st Cir. 2012)). Second, we review “the evidence to see how 

many distinct criminal acts the defendant committed.” Id. at 540. We review 

a trial court’s rulings on multiplicity challenges de novo. Id. at 538. 

Turning to the allowable unit of prosecution under 18 U.S.C. 

§ 2252(a)(4)(B), it must first be noted that the Government’s argument 

relies on caselaw analyzing an entirely distinct provision, 18 U.S.C. 

§ 2252A(a)(5)(B). We have indeed held that under § 2252A(a)(5)(B), which 

prohibits possession of “any” material containing images of child 

pornography, the allowable unit of prosecution is “each ‘material,’ or 

medium, containing an image of child pornography.” Id. at 540 (citing 

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Planck, 493 F.3d at 504). However, that is not the provision under which 

Naidoo was charged. Rather, he was charged under 18 U.S.C. 

§ 2252(a)(4)(B), which prohibits the possession of “1 or more” matters

containing child pornography. This and other circuits have consistently held 

that § 2252(a)(4)(B)’s use of the phrase “1 or more” dictates that the 

simultaneous possession of multiple images of or matters containing child 

pornography constitutes a single violation of the statute.

8 Put simply, each 

separate SD card containing offending images is not a distinct allowable unit 

of prosecution under § 2252(a)(4)(B). See Chiaradio, 684 F.3d at 274–75 

(“[T]he defendant may have possessed two ‘matters’ (i.e., two computers)

that collectively contained thousands of images, but his simultaneous 

possession of ‘one or more’ matters transgressed the statute only once.”).

The Government’s attempts to distinguish this clear precedent are 

unavailing. First, notwithstanding the range of dates included in Count One, 

both counts plainly alleged simultaneous possession of child pornography on 

or about July 10, 2017. Next, the separate acts of transferring images onto the 

8 See United States v. Chilaca, 909 F.3d 289, 295 (9th Cir. 2018) (“We, like all other 

circuits that have considered the issue, interpret § 2252(a)(4)(B)’s use of the phrase ‘1 or 

more’ to mean that the simultaneous possession of different matters containing offending 

images at a single time and place constitutes a single violation of the statute.”); United 

States v. Emly, 747 F.3d 974, 979–80 (8th Cir. 2014) (finding three possession counts to be 

multiplicitous where defendant simultaneously possessed images on three separate 

devices); Chiaradio, 684 F.3d at 276 (holding that “the defendant’s unlawful possession of 

a multitude of files on two interlinked computers located in separate rooms within the same 

dwelling gave rise to only a single count of unlawful possession under section 

2252(a)(4)(B)”); United States v. Polouizzi, 564 F.3d 142, 155 (2d Cir. 2009) (holding that 

“Congress intended to subject a person who simultaneously possesses 

multiple . . . matter[s] containing a visual depiction of child pornography to only one 

conviction under 18 U.S.C. § 2252(a)(4)(B)”); United States v. Kimbrough, 69 F.3d 723, 

730 (5th Cir. 1995) (analyzing predecessor statute and finding that similar language 

“indicate[d] that the legislature did not intend for this statute to be used to charge multiple 

offenses” where the defendant was alleged to have possessed multiple images on or about 

the same date). 

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SD cards do not constitute separate violations of the statute. We have held 

that multiplicitous convictions for possessing a firearm and ammunition in 

violation of 18 U.S.C. § 922(g)(1) do not violate the Double Jeopardy Clause 

“[i]f the record establishes that the defendant obtained the firearm and 

ammunition on different occasions.” United States v. Sanchez, 675 F. App’x 

433, 436 (5th Cir. 2017). However, even assuming that the same rationale 

may apply in the § 2252(a)(4)(B) context, the Government cites no evidence 

that the pornography on the relevant devices was obtained at different times. 

And, as the Eighth Circuit has persuasively explained, the mere “act of 

copying or transferring files onto different devices in itself does not constitute 

an independent violation of the statute.” Emly, 747 F.3d at 979; see also 

Chiaradio, 684 F.3d at 275 (“If a defendant had multiple photo albums of 

images in his bedroom and living room and periodically swapped images 

between them, two convictions—one for each album—would not stand.”). 

Indeed, in this case, the Government’s evidence revealed not only that both 

devices contained images that were also found on Naidoo’s HP laptop, but

also that child pornography was accessed on both devices years before the 

November 2016 date relied on by the Government. 

Having concluded that Counts One and Two of the superseding 

indictment are multiplicitous, we turn to the appropriate remedy. As 

Naidoo’s terms of imprisonment and periods of supervised release for each 

count were ordered to run concurrently, our focus is on the monetary 

assessments Naidoo was ordered to pay per count. “Where it is clear that the 

dual convictions did not lead the district court to impose a harsher sentence,” 

we may simply modify the judgment to limit the monetary assessments paid

rather than remanding for resentencing. See United States v. Boston, 186 F. 

App’x 504, 506–07 (5th Cir. 2006); see also United States v. Thomas, 690 F.3d 

358, 372 (5th Cir. 2012). In this case, the district court made clear that, 

regardless of any potential error in its rulings at sentencing—including its

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rejection of Naidoo’s multiplicity-based challenge—it “would have imposed 

the identical sentence.” Accordingly, rather than remand for resentencing, 

we vacate Naidoo’s Count Two conviction and sentence and modify the 

district court’s judgment to impose only a $200 special assessment and a 

$10,000 assessment under the JVTA. 

B. Reasonableness of Naidoo’s Sentence

Naidoo raises challenges both to the procedural and substantive 

reasonableness of his sentence, arguing that the district court failed to 

exercise its discretion to reject Guidelines enhancements, did not avoid 

unwarranted disparities as required by 18 U.S.C. § 3553(a)(6), and imposed 

an unreasonable condition of supervised release limiting his Internet-use. 

We engage in a bifurcated review of a sentence: first examining 

“whether the district court committed any significant procedural error,” and 

then considering “the substantive reasonableness of the sentence.” United 

States v. Nguyen, 854 F.3d 276, 280 (5th Cir. 2017). In reviewing the 

procedural reasonableness of a sentence, we review the district court’s 

“interpretation and application of the Sentencing Guidelines de novo and its 

findings of fact for clear error.” Id. Significant procedural errors include 

“failing to calculate (or improperly calculating) the Guidelines range, 

treating the Guidelines as mandatory, failing to consider the § 3553(a) 

factors, selecting a sentence based on clearly erroneous facts, or failing to 

adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 

51 (2007). We then review a sentence’s substantive reasonableness for abuse 

of discretion. See Nguyen, 854 F.3d at 283. “A discretionary sentence 

imposed within a properly calculated guidelines range is presumptively 

reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 

2008). That presumption may be rebutted “only upon a showing that the 

sentence does not account for a factor that should receive significant weight, 

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it gives significant weight to an irrelevant or improper factor, or it represents 

a clear error of judgment in balancing sentencing factors.” United States v. 

Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (citing United States v. Nikonova, 480 

F.3d 371, 376 (5th Cir. 2007)).

1. Guidelines Enhancements 

Naidoo’s first challenge is to the procedural reasonableness of his 

sentence. Naidoo argues that the district court improperly treated the 

Guidelines as mandatory and should have exercised its discretion to reject 

enhancements provided under U.S.S.G. § 2G2.2 for child pornography 

offenses. Naidoo relies on a decision of the Second Circuit, United States v. 

Dorvee, in which the court found that the enhancements provided under § 

2G2.2 were “irrational[]” and directed district courts to “take seriously the 

broad discretion they possess in fashioning sentences under § 2G2.2” 

because those Guidelines were not developed using an “empirical 

approach.” 616 F. 3d 174, 184, 187–88 (2d Cir. 2010). However, as Naidoo 

concedes, we have already considered Dorvee’s reasoning and refused to 

“reject a Guidelines provision as ‘unreasonable’ or ‘irrational’ simply 

because it is not based on empirical data and even if it leads to some 

disparities in sentencing.” United States v. Miller, 665 F.3d 114, 121 (5th Cir. 

2011). As we explained, “[t]he Guidelines remain the Guidelines, and district 

courts must take them into account.” Id. at 123.

Moreover, the record does not support that the district court treated 

the Guidelines as mandatory. The district court repeatedly articulated its 

understanding that the Guidelines are merely advisory. And there is no error 

in the district court’s statement that it “need[ed] to apply the sentencing 

guidelines as they have been given to me.” Though the Guidelines are 

advisory only, district courts “must consult those Guidelines and take them 

into account when sentencing.” United States v. Booker, 543 U.S. 220, 264 

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(2005); see also Kimbrough v. United States, 552 U.S. 85, 91 (2007) (“A 

district judge must include the Guidelines range in the array of factors 

warranting consideration.”); Miller, 665 F.3d at 121 (“Empirically based or 

not, the Guidelines remain the Guidelines. It is for the Commission to alter 

or amend them.”).

2. District Court’s Application of 18 U.S.C. § 3553(a)(6)

Naidoo’s next challenge is to the substantive reasonableness of his 

sentence. Naidoo argues that the court failed to avoid unwarranted 

disparities as required by 18 U.S.C. § 3553(a)(6). Naidoo recites national 

statistics demonstrating the low percentage of defendants sentenced under 

§ 2G2.2 who received a sentence within the Guidelines range and showing 

that the average sentence for possessing child pornography without a 

mandatory minimum sentence is less than half his own. Naidoo further 

argues that his sentence is “unfairly comparable to defendants who 

committed far more egregious conduct.”

Naidoo has failed to rebut the presumption of reasonableness that is 

afforded to his within-Guidelines sentence. First, “avoiding unwarranted 

general sentencing disparities is not a factor that we grant significant weight 

where the sentence is within the Guidelines range.” United States v. Diaz, 

637 F.3d 592, 604 (5th Cir. 2011). Further, we have held that “[n]ational 

averages of sentences” with “no details underlying the sentences are 

unreliable to determine unwarranted disparity.” United States v. Willingham, 

497 F.3d 541, 544 (5th Cir. 2007). Indeed, where averages “only reflect a 

broad grouping of sentences imposed on a broad grouping of criminal 

defendants,” they are “basically meaningless in considering whether a 

disparity with respect to a particular defendant is warranted or 

unwarranted.” Id. at 544–45. Accordingly, Naidoo’s arguments based on 

broad nationwide statistics are irrelevant. Finally, his attempted comparisons 

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to defendants convicted of other offenses do not demonstrate a disparity 

between “similarly situated” defendants. United States v. Cedillo-Narvaez, 

761 F.3d 397, 406 (5th Cir. 2014).

3. Condition of Supervised Release

Naidoo’s challenge to his condition of supervised release is also a 

challenge to the substantive reasonableness of his sentence. See, e.g., United 

States v. Becerra, 835 F. App’x 751, 755 (5th Cir. 2021) (reviewing a similar 

objection as a challenge to the substantive reasonableness of a sentence).

Naidoo argues that the condition of supervised release which requires him to 

seek permission from a Probation Officer prior to using any Internet-capable 

device should be modified to permit him to use the Internet without seeking 

permission before every use. We have indeed found similar conditions to be 

“unreasonably restrictive” to the extent they require the defendant “to 

request permission every time he needs to use a computer, or every time he 

needs to access the Internet.” United States v. Sealed Juvenile, 781 F.3d 747, 

756 (5th Cir. 2015). Accordingly, we affirm the condition of supervised 

release subject to our interpretation that individual approval is not required

every single time Naidoo must use a computer or access the Internet. Id. at 

757; see also United States v. Melton, 753 F. App’x 283, 289 (5th Cir. 2018).

V.

Based on the foregoing, we VACATE Naidoo’s Count Two 

conviction and sentence under 18 U.S.C. § 2252(a)(4)(B) and (b)(2), and 

MODIFY the district court’s judgment to impose only a $200 special 

assessment and a $10,000 assessment under the JVTA. Any money paid by 

Naidoo in satisfaction of the assessments ordered on Count Two should be 

refunded. In all other respects, we AFFIRM. 

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