United States Court of Appeals

Fifth Circuit

FILED

July 19, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 05-21040

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHN ANTHONY PLANCK,

Defendant - Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(4:05-CR-206)

_________________________________________________________________

Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit

Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For his seven guilty-plea convictions concerning child

pornography, John Anthony Planck challenges only his three

possession convictions, contending the underlying counts are

multiplicitious. Regarding his sentence, he challenges the

imposition of a life term of supervised release. AFFIRMED.
2

I.

In 2003, United States Immigration and Customs Enforcement

Agents were engaged in an online child-pornography investigation.

Planck was identified as a computer user responsible for uploading

child pornographic images onto a Government-monitored website. In

August 2004, a search warrant was executed at his residence; a

desktop computer, laptop computer, and 223 computer diskettes were

seized.

The desktop computer contained 88 videos and still childpornography photographs; the laptop computer, four still

photographs; and the diskettes, thousands of images. In total,

Planck’s computer data contained approximately 5,000 childpornography images. 

Planck was charged with four counts of distribution of child

pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(B),

2252A(b)(1), and 2256; and three counts of possession of child

pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B),

2252A(b)(2), and 2256. The possession counts were based on his

having child pornography on his two computers and diskettes. 

Planck moved to dismiss two of the possession counts on

multiplicity grounds, contending he was being prosecuted three

times for the same possession-of-child-pornography act. The

Government responded that, although the counts arose under the same

statutory provision, the device involved in each count (desktop
3

computer, laptop computer, and diskettes), and the images in each

of those devices, differed.

The district court denied Planck’s motion. In August 2005, he

pleaded guilty to all seven counts. 

The November 2005 Presentence Investigation Report (PSR)

recommended a base offense level of 32, based on the post-Booker

advisory 2003 Sentencing Guidelines. The recommended advisory

Guidelines range was 121 to 151 months imprisonment. Noting the

Guidelines suggested a two to three year term, the PSR instead

recommended the statutory maximum of a life term, for supervised

release, pursuant to Guidelines § 5D1.2(c) (term of statutory

release should not be less than any statutorily required minimum).

Planck did not object to that recommendation. 

In December 2005, adopting the recommendations in the PSR, the

district court sentenced Planck, inter alia, to 121-months

imprisonment on the distribution counts and 120-months on the

possession counts, to be served concurrently. The court also

imposed a life term of supervised release, in accordance with §

5D1.2(c). After imposition of sentence, Planck again objected to

the possession counts on multiplicity grounds; he again did not

object to the supervised release. 
4

II.

A.

Planck first contends two of the three possession counts are

multiplicitious and should be dismissed. Multiplicity claims are

reviewed de novo. United States v. Brechtel, 997 F.2d 1108, 1112

(5th Cir. 1993). The rule against multiplicitous prosecutions

stems from the Fifth Amendment’s proscription against double

jeopardy. E.g., United States v. Kimbrough, 69 F.3d 723, 729 (5th

Cir. 1995). The rule prevents the Government from charging a

single offense in more than one count of an indictment. United

States v. Heath, 970 F.2d 1397, 1401 (5th Cir. 1992). “The chief

danger raised by a multiplicitous indictment is the possibility

that the defendant will receive more than one sentence for a single

offense.” United States v. Swaim, 757 F.2d 1530, 1537 (5th Cir.

1985). 

In deciding whether an indictment is multiplicitious, we look

to “whether separate and distinct prohibited acts, made punishable

by law, have been committed”. United States v. Shaid, 730 F.2d

225, 231 (5th Cir. 1984) (quoting Bins v. United States, 331 F.2d

390, 393 (5th Cir. 1964)). To do so, we must first determine the

“allowable unit of prosecution”, see United States v. Reedy, 304

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

C.I.T. Credit Corp., 344 U.S. 218, 221 (1952)), which is the actus
5

reus of the defendant, United States v. Prestenbach, 230 F.3d 780,

783 (5th Cir. 2000).

The issue at hand is a matter of first impression for our

court. Therefore, we look to our precedent in analogous cases to

guide our analysis. Section 2252A(a)(5)(B) proscribes “knowingly

possess[ing] any book, magazine, periodical, film, videotape,

computer disk, or any other material that contains an image of

child pornography ....” Plank contends: despite the possession of

child pornography in three different types of devices, his acts

still constituted only a single violation of § 2252A(a)(5)(B),

because he was found in possession of the images at the same time

and place. 

In support, Planck cites Prestenbach. There, the defendant

was convicted on four counts for possessing four altered money

orders in a bottle, in violation of 18 U.S.C. § 494, which made it

a crime to “[knowingly] possess ... any such false, forged,

altered, or counterfeited writing”. In Prestenbach, only a single

act of possession was alleged. 230 F.3d at 783.

Our court reversed the conviction, holding: where “contraband

is possessed at a single place and time, there is a single act of

possession and a single crime”. Id. “Keeping four altered money

orders in a ... bottle is one action, and therefore one crime.”

Id. at 784. Notably, however, Prestenbach also stated: had “the
6

government proved separate acts leading to ... possession of the

altered money orders, it [would be] ... a different case”. Id.

Statutes punishing the possession of firearms by felons lend

similar support. Although 18 U.S.C. § 922(h) punishes the

“possess[ion]” or “recei[pt]” of “any firearm or ammunition”

traveling through interstate commerce, the “firearms themselves

[are not] allowable units of prosecution, unless they were received

at different times or stored in separate places”. United States v.

Hodges, 628 F.2d 350, 352 (5th Cir. 1980) (emphasis added); see

also United States v. Berry, 977 F.2d 915, 920 (5th Cir. 1992)

(simultaneous possession of firearms and ammunition can sustain

multiple violations of 18 U.S.C. § 922 if firearms were obtained at

different times or stored in separate places). Congress chose not

to punish the “undifferentiated possession or receipt of multiple

firearms ... more severely than the possession or receipt of a

single firearm”. Hodges, 628 F.2d at 352 (emphasis added). But

again, a defendant could be charged with multiple violations of the

statute for receipt or possession of different firearms at

different times. United States v. Bullock, 615 F.2d 1082, 1085-86

(5th Cir. 1980). 

“Where a defendant has a single envelope or book or magazine

containing many images of minors engaging in sexual activity, the

government often should charge only a single count.” Reedy, 304

F.3d at 367. Here, however, the desktop, laptop, and diskettes
7

Planck possessed were three separate types of material or media,

each capable of independently storing images of child pornography.

Along that line, where a defendant has images stored in separate

materials (as defined in 18 U.S.C. § 2252A), such as a computer, a

book, and a magazine, the Government may charge multiple counts,

each for the type of material or media possessed, as long as the

prohibited images were obtained through the result of different

transactions. 

A contrary result would allow amassing a warehouse of child

pornographic material — books, movies, computer images — with only

a single count of possession as a potential punishment. As Bullock

noted, when discussing the firearms statute: 

[C]ould Congress have intended to deter

receipt as well as possession of firearms by

convicted felons and yet design the statute to

only allow one punishment no matter how many

separate receipts and possessions occurred? We

think not. Any other determination would allow

convicted felons and terrorists to establish

armories where all of their weapons would be

kept. The person in custody of the armory

would then be subject to only a single charge

of possession, although thousands of illegal

and dangerous weapons were received and

stockpiled at different times.

Bullock, 615 F.2d at 1086. 

Recently, in United States v. Buchanan, 485 F.3d 274 (5th Cir.

2007), our court reversed a multiplicitous conviction under 18

U.S.C. § 2252(a)(2), which proscribes, inter alia, the receipt of

child pornography. Buchanan was convicted, following a jury trial,
8

on four separate counts, for having accessed and saved to his

computer four different child pornographic images. Id. at 277-78.

Our court held the Government “bore the burden of establishing

multiple counts by charging and proving separate receipts” of the

contraband material; it failed to meet its burden by not

“alleg[ing] separate receipt of the four images identified”. Id.

at 282. Buchanan is, of course, distinguishable; in a

receipt/distribution statute, such as 18 U.S.C. § 2252(a)(2), each

separate receipt of child pornography violates the statute. Id. at

279-82; cf. United States v. Gallardo, 915 F.2d 149, 151 (5th Cir.

1990) (each separate use of the mail to transport or ship child

pornography should constitute a separate crime). 

For the possession statute in issue, however, the actus reus

is the possession of child pornography; the Government need only

prove the defendant possessed the contraband at a single place and

time to establish a single act of possession and, therefore, a

single crime. Prestenbach, 230 F.3d at 783. Through different

transactions, Planck possessed child pornography in three separate

places — a laptop and desktop computer and diskettes — and,

therefore, committed three separate crimes. The counts are not

multiplicitous. 
9

B.

In contesting his life term of supervised release, Planck

concedes he did not object to that term in district court.

Therefore, we review only for plain error. FED. R. CRIM. P. 52(b).

To establish reversible plain error, a defendant must show a clear

or obvious error affected his substantial rights. E.g., United

States v. Castillo, 386 F.3d 632, 636 (5th Cir. 2004). Even if the

defendant does so, we retain discretion to correct the plain error;

generally, we will do so only if it “affects the fairness,

integrity, or public reputation of judicial proceedings”. Id.

There is no reversible plain error. 

The policy statement in Guidelines § 5D1.2 recommends a

maximum term of supervised release for sex offenders who are

convicted under Chapter 110 of the United States Code (Sexual

Exploitation and Abuse of Children), particularly those who commit

crimes “perpetrated against minors”. U.S.S.G. § 5D1.2(c) & cmt.

n.1 (2003). Read in conjunction with statutory provisions

governing supervised release, district courts are authorized to

impose a life term of supervised release on sex offenders,

particularly those who commit crimes against minors. United States

v. Allison, 447 F.3d 402, 405 (5th Cir. 2006). 

Planck first claims his offense does not qualify under §

5D1.2(a)(2), asserting that consuming and distributing, unlike

manufacturing, child pornography is not a crime perpetrated against
10

a minor. In that regard, he further claims: had the drafters of

the Guidelines intended for all sex offenses under Chapter 110 to

be encapsulated within § 5D1, they would have omitted the qualifier

“perpetrated against a minor”.

Possession and distribution of child pornography are crimes

perpetrated against a minor. As this court has stated previously,

a child may be victimized in three distinct ways:

First, the simple fact that the images have

been disseminated perpetuates the abuse

initiated by the producer of the materials

.... Second, the mere existence of child

pornography represents an invasion of privacy

of the child depicted. Both the Supreme Court

and Congress have explicitly acknowledged that

the child victims of child pornography are

directly harmed by this despicable intrusion

on the lives of the young and the innocent

.... Third, the consumer of child pornography

instigates the original production of child

pornography by providing an economic motive

for creating and distributing the materials. 

United States v. Norris, 159 F.3d 926, 929-30 (5th Cir. 1998)

(internal citations, quotation marks, and emphasis omitted).

Under the advisory-Guidelines regime imposed by United States

v. Booker, 543 U.S. 220 (2005), a district court must still

consider the sentencing considerations provided in 18 U.S.C. §

3553(a). E.g., United States v. Smith, 440 F.3d 704, 706 (5th Cir.

2006). In the alternative, Planck claims: even if he qualified

for an upward departure, it was not warranted because his case was

not outside the heartland of a typical case. 
11

In imposing the supervised release, the district court stated

it was intended to “serve as a deterrent [for the defendant] from

continued elicit [sic] behavior involving sexual conduct of minors

and/or the possession of child pornographic materials that would

address the need to protect the public from further crimes of this

defendant”. These stated reasons are consistent with the

sentencing factors in § 3553(a). See 18 U.S.C. § 3553(a)(2)(B, C)

(“deterrence” and “protect[ing] the public from further crimes of

the defendant” as sentencing factors). Furthermore, because of the

seriousness of the offense, we have previously upheld life terms of

supervised release against sex offenses perpetrated against minors.

See Allison, 447 F.3d at 407 (“[T]he decision to departure upward

... [is] consistent with Congress’s and the Sentencing Commission’s

intention to punish child sex offenders with life terms of

supervised release”.). 

III.

For the foregoing reasons, the judgment is

AFFIRMED.
1 Although the desktop computer was found in Planck’s living

room, the laptop computer in his dining room, and the diskettes

in his bedroom, all were stored in his house at the same time. 

Under these facts, it is feckless to contend that these items

were stored in different places. Possession of all items within

Planck’s home was storage in the same place.

12

No. 05-21040

WIENER, Circuit Judge, specially concurring:

I am comfortable with the majority’s disposition of the issue of Planck’s

term of supervised release. I add this special concurrence, however, to expand

on the multiplicity issue.

I agree with the majority that, in prosecutions for possession offenses, the

actus reus is the defendant’s act of possession, in consequence of which a

defendant who possesses multiple items of contraband at the same time and

place may be convicted of only one possession offense, just as a defendant who

possesses a single item of contraband may be convicted of only one offense. I

also agree with the majority’s recognition of an exception to this general rule: A

defendant who possesses multiple items of contraband at the same time and

place, may nevertheless be convicted of multiple possession offenses if he either

(1) came into possession of differentitems of contraband at differenttimes or (2),

as the government contends here, stored some of the items in different places.1
13

In this prosecution,the governmentfailed to adduce any evidence or assert

any facts through the factual basis, rearraignment hearing, sentencing hearing,

pre-sentence investigation report, or indictment, that Planck acquired possession

of any of the pornographic images and movies at different times. Even though

such an omission could be fatal to a prosecution under different circumstances,

it is not here: Given the overwhelming number of images and movies stored on

the computers and diskettes in Planck’s house, it would exceed credulity to

conclude thatPlanck acquired, or could have acquired, all the images and movies

at the very same time. In this guilty-plea case, the district court did not clearly

err in implicitly finding that, based on and supported by the evidence actually

presented, Planck must have acquired possession of the images and movies at

different times. Under the discrete facts of this case, I must concur in the

majority’s conclusion that convictions on Counts 5 through 7 — the possession

counts — are not multiplicitous.

I remain troubled, however, by the government’s failure to present any

affirmative evidence or assert any discrete facts to support the requirement of

Planck’s having acquired the images and movies at more than one time. It could

not have been difficultfor the governmentto ascertain whenPlanck downloaded

each of the images and movies, especially in light of the government’s ability to

perform the more difficult task of tracing the upload of images by Planck, a
14

resident of Kingwood, Texas, to an online sharing community operating in

Newark, New Jersey.

I am even more disturbed by the government’s and probation office’s

apparent failure to recognize the law in this circuit concerning multiple

possession offenses in general. Even though this case is, in the narrowest sense,

one of first impression under this statute and these discrete facts, it remains a

contraband possession case atits core. Yet at no time, either in the district court

or on appeal, has the government or probation office acknowledged, recognized,

or represented that the only way to support multiple possession charges against

a defendant in Planck’s position is to allege and prove that he either acquired

possession of the images and movies at different times or stored them in

different places. Here, the government either failed to determine the applicable

law before prosecuting Planck or simply disregarded it. 

Had the facts of this case been but slightly different, the result might well

have been different too. And, although the only thing at stake in this particular

multiplicity issue is a $200.00 special assessment fee, it would have been a

miscarriage if we had been left no choice but to reverse all but one of these

convictions of an admitted child pornographer simply because the government

failed either to learn the law or to present the necessary factual underpinnings.

A word (actually, quite a few words) to the wise should be sufficient.