15‐3867‐cr  

United States v. Powers

In the 

United States Court of Appeals 

for the Second Circuit    

AUGUST TERM 2016

No. 15‐3867‐cr

UNITED STATES OF AMERICA,

Appellee,

v.

HEATH POWERS,

Defendant‐ Appellant.

   

On Appeal from the United States District Court

for the Northern District of New York  

   

ARGUED: NOVEMBER 9, 2016

DECIDED: NOVEMBER 21, 2016

   

Before: CABRANES, POOLER, and PARKER, Circuit Judges.

   
2

Defendant‐Appellant Heath Powers pleaded guilty to thirteen

counts of child‐pornography‐related offenses and now appeals his

judgment of conviction, challenging (1) the factual basis supporting

his plea as to one of the thirteen counts and (2) the reasonableness of

his 480‐month (40‐year) sentence of imprisonment. The Government

concedes that the District Court (Mae A. D’Agostino, Judge)

committed “plain error” by accepting Powers’s plea to the count

challenged on appeal and that Powers’s conviction as to that count

must be vacated, but argues that resentencing is unnecessary. We

disagree with the Government with respect to the appropriate

remedy. Because the error below was a so‐called “conviction error,”

de novo resentencing is required.   

Accordingly, we REMAND the cause to the District Court

with instruction to vacate the erroneous count of conviction and for

de novo resentencing.

Judge Pooler concurs in the judgment and opinion of the Court

and files a concurring opinion.

   

         MOLLY CORBETT (Lisa A. Peebles, on the

brief), Office of the Federal Public Defender

for the Northern District of New York,

Albany, NY.

STEVEN D. CLYMER (Gwendolyn E. Carroll,

on the brief), Assistant United States
3

Attorneys, for Richard S. Hartunian, United

States Attorney for the Northern District of

New York, Syracuse, NY.   

   

PER CURIAM:

Defendant‐Appellant Heath Powers pleaded guilty to thirteen

counts of child‐pornography‐related offenses and now appeals his

judgment of conviction, challenging (1) the factual basis supporting

his plea as to one of the thirteen counts and (2) the reasonableness of

his 480‐month (forty‐year) sentence of imprisonment. The

Government concedes that the District Court (Mae A. D’Agostino,

Judge) committed “plain error” by accepting Powers’s plea to the

count challenged on appeal and that Powers’s conviction as to that

count must be vacated, but argues that resentencing is unnecessary.

We disagree with the Government with respect to the appropriate

remedy. Because the error below was a so‐called “conviction error,”

de novo resentencing is required.   

Accordingly, we REMAND the cause to the District Court

with instruction to vacate the erroneous count of conviction and for

de novo resentencing.  

BACKGROUND

While working as a babysitter, Powers took sexually explicit

photos of, and engaged in sexual acts involving, a seven‐year‐old girl

(“V‐1”). On August 4, 2014, Powers took four pornographic
4

photographs of V‐1. That same day, Powers connected with an

undercover FBI agent through an online site used to swap

pornographic pictures of children, and sent all four images to the

agent. On August 5, 2014, Powers took seven more photographs of V‐

1 and, on August 7, 2014, sent four of these seven to the same

undercover agent. One of the images in this second batch was

unique; unlike the other images of V‐1 (in either batch), it did not

focus on the child’s pubic area and instead “the child’s bare chest

[wa]s the focus of the image.” PSR ¶ 9(a).   

On August 10, 2014, Powers was babysitting when law

enforcement agents executed a search warrant at the home of V‐1. In

the course of questioning, Powers admitted to taking sexually explicit

photographs of V‐1, to distributing them online, and to receiving

pornographic images of other children. Powers provided his iPhone

4 (and its passcode) to the agents, which revealed approximately 125

photographs of V‐1 as well as other pornographic photos of children.

In a search of Powers’ residence, agents found other electronic

devices that contained more child pornography.  

The following month, a federal grand jury returned an

indictment charging Powers with eleven counts of production of

child pornography (Counts One through Eleven, or “the production

counts”), in violation of 18 U.S.C. § 2251(a), (e); one count of

distribution of child pornography (Count Twelve), in violation of 18
5

U.S.C. §§ 2252A(a)(1)(A) [sic]1 and (b)(1), and 2256(8)(A); and one

count of possession of child pornography (Count Thirteen), in

violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2), and 2256(8)(A.).

Although it is not necessarily apparent from the record on appeal

which image corresponded to which production count, the

Government submits in its appellate brief that Count Six had as its

factual basis the production of the “bare chest” image.

On June 2, 2015, Powers pleaded guilty to all counts in the

indictment without a plea agreement. On November 19, 2015, the

District Court sentenced Powers to a below‐Guidelines 480‐month

(forty‐year) term of imprisonment.2  

DISCUSSION

The Government concedes that the District Court committed

“plain error” by allowing Powers to plead guilty to a count for which

there was no “factual basis for the plea.”3 Specifically, the image of V‐

 

1 As the parties agree, the indictment incorrectly cited the statutory

provision. It should have cited 18 U.S.C. § 2252A(a)(2)(A), not (a)(1)(A).  

2 More specifically, the District Court sentenced Powers to 360 months on

each of the production counts, to run concurrently; 120 months on Count 12, to

run consecutively to the production counts; and 120 months on Count 13, to run

concurrently to Counts 1 through 12.  

3 Fed. R. Crim. P. 11(b)(3). (“Before entering judgment on a guilty plea, the

court must determine that there is a factual basis for the plea.”)
6

1 that focused on her bare chest was not within the definition of

“sexually explicit conduct” prohibited by 18 U.S.C. § 2251(a), and

conduct relating to it cannot serve as a factual basis for a conviction

thereunder.4 We agree that Powers’s count of conviction related to

that image, but only that image, must therefore be vacated. The

principal issue on appeal is thus the appropriate remedy where only

part of a conviction is subsequently overturned.

Our opinion in United States v. Rigas, 583 F.3d 108 (2d Cir.

2009), aimed to settle that very question. Rigas sought to clarify

United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002), which had held

that the “default rule” to remedy a so‐called “conviction error”—as

distinct from a so‐called “sentencing error”—is de novo resentencing.

See Quintieri, 306 F.3d at 1228 & n.6. After considering Quintieri and

its progeny, Rigas explained that Quintieri had “created a rule, not a

guideline,” and to the extent it or prior cases were ambiguous, Rigas

 

4 18 U.S.C. § 2251 prohibits “employ[ing], us[ing], persuad[ing],

induc[ing], entic[ing], or coerc[ing] any minor to engage in . . . with the intent that

such minor engage in, any sexually explicit conduct for the purpose of producing

any visual depiction of such conduct or for the purpose of transmitting a live

visual depiction of such conduct . . . .” 18 U.S.C. § 2256(2)(A) defines “sexually

explicit conduct” to be “actual or simulated[] (i) sexual intercourse, including

genital‐genital, oral‐genital, anal‐genital, or oral‐anal, whether between persons of

the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or

masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any

person.”
7

“resolve[d] any ambiguity” in favor of de novo resentencing following

conviction errors.  Rigas, 583 F.3d at 117‐19.   

Subsequent characterizations of the rule in non‐precedential

summary orders and in passing dicta in published opinions have

remained somewhat ambiguous, however. One panel read Rigas,

albeit only in a summary order, as having established an essentially

uniform rule.5 Other panels, likewise in summary orders or in dicta,

have continued to use, at least as a matter of linguistics, the “default

rule” formulation of Quintieri when mentioning Rigas.

6 Notably,

 

5 See United States v. Yepes‐Casas, 473 F. App’x 90, 90‐91 (2d Cir. 2012)

(“[T]his Circuit’s recent precedent is unequivocal: any ‘conviction error’ requires a

de novo re‐sentencing.”); see also United States v. Draper, 553 F.3d 174, 184 (2d Cir.

2009) (citing Quintieri and stating “because we are reversing the witness

retaliation convictions, de novo resentencing is required”).

6 See United States v. Weingarten, 713 F.3d 704, 711‐12 (2d Cir. 2013)

(describing Rigas, in part, as having held that “if the vacatur of a count of

conviction has altered the ‘factual mosaic related to’ the remaining counts” then

resentencing is required (emphasis added)); United States v. Desnoyers, 708 F.3d

378, 386–87 (2d Cir. 2013) (“Typically, the defendant is entitled to de novo

sentencing when the court of appeals reverses a conviction because a change in

the ‘constellation of offenses of conviction’ alters the ‘factual mosaic related to

those offenses.’” (quoting Rigas, 583 F.3d at 115) (emphasis added)); United States

v. Mends, 412 F. App’x 370, 375 (2d Cir. 2011) (“This circuit has adopted a ‘default

rule that resentencing is required where part of a conviction is reversed on

appeal.’” (quoting Rigas, 583 F.3d at 117)); United States v. Capoccia, 354 F. App’x

522, 523–24 (2d Cir. 2009) (summary order) (“Where a count of a conviction is
8

however, applications of the rule, be it characterized as “default” or

not, are almost entirely consistent. No case cited in footnote six

permitted a district judge, following partial vacatur of a conviction,

simply to enter an amended judgment.  

Indeed, it appears that only one post‐Rigas case has allowed a

district judge to do so. See United States v. Moreno‐Montenegro, 553 F.

App’x 29, 31–32 (2d Cir. 2014). That summary order reasoned as

follows:

With respect to the appropriate remedy, Moreno‐

Montenegro requests a remand for de novo resentencing,

contending that vacating one of his convictions

“‘effectively undoes the entire knot of calculation’

underlying the original sentencing.” United States v.

Barresi, 361 F.3d 666, 672 (2d Cir. 2004) (quoting United

States v. Quintieri, 306 F.3d 1217, 1228 (2d Cir. 2002)). We

disagree. The two offenses here were considered

together throughout the proceedings below, and the

district court ultimately imposed identical concurrent

sentences for both counts. Moreover, as explained below,

we find no other error in the defendantʹs sentencing. In

 

overturned, the ordinary procedure is to remand for de novo resentencing.”

(emphasis added)); see also United States v. Malki, 718 F.3d 178, 182 (2d Cir. 2013)

(per curiam) (not citing Rigas and using the “default rule” formulation).
9

accordance with our practice in such circumstances, we

accordingly will remand with instructions for the district

court to vacate the conviction on one of the two counts

and to enter an amended judgment. See, e.g., United

States v. Miller, 116 F.3d 641, 685 (2d Cir. 1997).

Id. at 32 (emphasis added).  

The Government relies heavily upon Moreno‐Montenegro

here—and, it appears, elsewhere7—in arguing that resentencing is

unnecessary. That reliance is misplaced. The “practice” identified in

Moreno‐Montenegro is appropriate only when the defendant has

already received, as his or her sentence on an upheld count of

conviction, a mandatory minimum sentence. Those were the

circumstances in Miller, to which Moreno‐Montenegro attributes “our

practice,” and in the other case upon which the Government here

relies, Burrell v. United States, 467 F.3d 160 (2d Cir. 2006).8 Such

 

7 In other cases, it appears, the government similarly relies on this case. See

Brief for United States, United States v. Rosario, 652 F. App’x 38 (2d Cir. 2016) (No.

15‐1305), 2015 WL 6777675, at *47‐48; Brief for United States, United States v.

Santiago, No. 14‐2203 (2d Cir. Feb. 22, 2016), 2016 WL 727005, at *38‐39; Brief for

United States, United States v. Palmer, No. 15‐3006 (D.C. Cir. Aug. 5, 2016), 2016

WL 4158243, at *27 n.12.  

8 In fact, both cases involved the dismissal of a conspiracy count, under the

Double Jeopardy Clause, as a lesser‐included offense of engaging in a continuing

criminal enterprise (or “CCE”).  See Miller, 116 F.3d at 651 (remanding solely for
10

circumstances—in which a district court’s amending its judgment of

conviction is, by force of law, “strictly ministerial”9—constitute the

only viable exception to the rule set forth in Rigas. And as a non‐

precedential summary order, Moreno‐Montenegro is without force to

suggest otherwise.  

Here, Powers was not given a mandatory minimum sentence

for any of the twelve non‐deficient counts of conviction.  

Accordingly, Rigas controls and de novo resentencing is required.10 In

light of that, we do not reach Powers’s challenge to the substantive

reasonableness of his current sentence.

 

dismissal of a conspiracy count where the defendant “was convicted on one count

of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. §§ 848(a)

and 848(b)(1)(A) (1994),” which mandated a life sentence); Burrell, 467 F.3d at 162

(“The record reveals that, at the time Burrell was sentenced, the Sentencing

Guidelines required the district court to impose a sentence of life imprisonment

for the CCE conviction alone regardless of Burrell’s conspiracy conviction given

his adjusted offense level of 44 on the CCE count.”). Perhaps for this reason,

Powers attempts to distinguish Moreno‐Montenegro as a Double Jeopardy Clause

case, but we find no principle of law or logic that would support treating a

conviction error that arises under the Double Jeopardy Clause as different from all

other conviction errors.  

9 Burrell, 467 F.3d  at 166 & n.4.

10 That process need not be overly cumbersome. See Desnoyers, 708 F.3d at

386–87; Rigas, 583 F.3d at 119‐21.
11

CONCLUSION

For the reasons stated above, we REMAND the cause to the

District Court with instruction to vacate the erroneous count of

conviction and for de novo resentencing.   
1 

1 POOLER, Circuit Judge:

2 While we express no view on the substantive reasonableness of Powers’

3 sentence, I write separately in order to call the district court’s attention to the

4 need to, as always, give appropriate weight to all of the Section 3553(a) factors on

5 de novo resentencing. See United States v. Dorvee, 616 F.3d 174, 183‐84 (2d Cir.

6 2010) (suggesting the district court gave too much weight to the ‘need to protect

7 the public’ factor in sentencing an individual for distribution of child

8 pornography where the court noted that an individual who repeatedly had sex

9 with a child would have faced a far more lenient sentence).  

10 Accordingly, I respectfully concur.