NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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Nos. 18-2719 and 18-2994

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UNITED STATES OF AMERICA 

 

v.

DEVON E. SANDERS,

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 2:16-cr-00513-001)

District Court Judge: Honorable Lawrence F. Stengel

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Argued: September 24, 2019

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Before: McKEE, AMBRO, and ROTH, Circuit Judges

(Opinion filed: November 13, 2020)

Anna M. Durbin, Esq.

50 Rittenhouse Place

Ardmore, PA 19003

Peter Goldberger, Esq. (Argued)

50 Rittenhouse Place

Ardmore, PA 19003

Counsel for Appellant

Alison D. Kehner, Esq. (Argued)

Office of United States Attorney
2

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Michelle Rotella, Esq.

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

_______________________

OPINION*

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McKEE, Circuit Judge.

Appellant Devon Sanders pled guilty to receipt of child pornography in violation 

of 18 U.S.C. § 2242(a)(2) and possession of child pornography in violation of 18 U.S.C. 

§ 2252(a)(4)(B). Sanders presents three issues on appeal: (1) that his receipt and 

possession charges should have merged for sentencing; (2) that the district court erred 

when it found that probation was not available under 18 U.S.C. § 2252(a)(2), the 

receiving child pornography statute; and (3) that the district court abused its discretion by 

failing to disaggregate Sanders’ harm from the harm caused by the original acts of child 

* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not 

constitute binding precedent.
3

abuse when it ordered him to pay $91,049 in restitution.

1 For the following reasons, we 

will affirm the district court.2

The appellant correctly contends that the doctrine of merger is rooted in 

protections against the same conduct receiving multiple punishments, which the Double 

Jeopardy Clause prohibits.

3

In United States v. Finley, we reiterated the rule that for 

“multiple punishments to constitute a double jeopardy violation, the multiple charged 

offenses must be the same in law and in fact.”4 Whether the offenses are the same in law 

requires a court to consider if the statutory provision creates multiple offenses or one 

offense provable in alternative ways.5 We expressly held in United States v. Miller that 

possession of child pornography is a lesser-included offense of receiving the 

pornographic material.6 Conversely, whether two charged offenses are the same in fact 

requires the court to consider if the underlying conduct violates the statute more than 

1 On Sanders’ first claim, we review whether the two counts of his indictment merged for 

purposes of sentencing de novo as it presents a pure question of statutory construction 

and constitutional law. United States v. Kennedy, 682 F.3d 244, 255 n.8 (3d Cir. 2012). 

On Sanders’ second claim, that probation is an available sentence under 18 U.S.C. § 

2252(b)(1), we review this statutory interpretation issue de novo. See, e.g., Stiver v. 

Meko, 130 F.3d 574 (3d Cir. 1997). On Sanders’ final claim, we review the district 

court’s restitution order for abuse of discretion. United States v. Quillen, 335 F.3d 219, 

221 (3d Cir. 2003).

2 The district court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction over 

this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 to review the sentence and 

restitution order. See, e.g., United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006);

United States v. Stock, 728 F.3d 287, 291 (3d Cir. 2013).

3 Sanders Br. at 2 (framing the issue as whether “the district court [should] have granted 

defendant Sanders’s motion to merge Counts One and Two, because they charged the 

“same offense” under the Double Jeopardy Clause”).

4 726 F.3d 483, 495 (3d Cir. 2013) (emphasis in original).

5

Id. (citing United States v. Rigas, 605 F.3d 194, 207 (3d Cir. 2010) (en banc)). 

6 527 F.3d 54, 71 (3d Cir. 2008) (citing Ball v. United States, 470 U.S. 856 (1985)). 
4

once or only a single time.7 Here, Sanders’ receipt count was based on three images, and 

the possession count covered thousands of images found later for which the government 

could not charge receipt. Therefore, the district court correctly declined to merge the 

charges for sentencing. 

We need not reach the second issue of whether the district court erred when it 

found that probation was not an available sentence under 18 U.S.C. § 2252(a)(2) as the 

court clearly stated that it did not think that a probationary sentence was appropriate here. 

App 201.

Finally, Sanders claims that the district court did not appropriately disaggregate 

the harm that he caused to the victims from the harm caused by others in the distribution 

chain, such as the producers and distributors of the images. In United States v. Paroline, 

the Supreme Court laid out the considerations necessary to determine restitution awards 

in child pornography cases.

8 The court stated: “At a general level of abstraction, a court 

must assess as best it can from available evidence the significance of the individual 

defendant’s conduct in light of the broader causal process that produced the victim’s 

losses.”9It noted that “[t]his cannot be a precise mathematical inquiry and involves the 

use of discretion and sound judgment.”10 It then listed “a variety of factors district courts 

might consider in determining a proper amount of restitution,” noting that “it is neither 

7 Finley, 726 F.3d at 495 (citing Rigas, 605 F.3d at 212).

8 572 U.S. 434 (2014).

9

Id. at 459 (considering how courts should appropriately determine restitution awards 

under the statute).

10 Id.
5

necessary nor appropriate to prescribe a precise algorithm for determining the proper 

restitution amount at this point in the law’s development.”11 It warned that “[t]hese 

factors need not be converted into a rigid formula. . . . They should rather serve as rough 

guideposts for determining an amount that fits the offense.”12

The district court explicitly considered all of the Paroline factors, including the 

factor of “whether the defendant had any connection to the initial production of the 

images.” The Court of Appeals for the Eighth Circuit has noted that this factor accounts 

for disaggregation of the harm caused by the initial abuse from the harm of later 

possession.

13 To the extent Paroline can be read to require a district court make specific 

findings on disaggregation of the original harm from the harm caused by possession, the 

district court explicitly reduced the award based on that factor. App. 31. Thus, the district 

court did not abuse its discretion in setting the award here. 

Accordingly, for the reasons stated above, we will affirm the judgment of 

sentence.

11 Id. at 459–60.

12 Id. at 460.

13 United States v. Bordman, 895 F.3d 1048, 1058 (8th Cir. 2018), cert. denied, 139 S. Ct. 

1618 (2019) (noting that Paroline accounted for disaggregation in the factor that asked 

“whether the defendant had any connection to the initial production of the images”).