United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3339

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United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Aaron Stock, *

* [UNPUBLISHED]

Defendant-Appellant. *

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Submitted: October 17, 2011

Filed: November 10, 2011

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Before MURPHY, BYE, and SMITH, Circuit Judges.

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PER CURIAM.

Aaron Stock pled guilty to two counts of possessing child pornography. After

his guilty plea was accepted but before sentencing, he filed a motion to merge the two

counts. He argued that the separate charges would punish him twice for the same

conduct because they were both based on his possession of child pornography at the
same time and place. The district court denied his motion and sentenced him to 135

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months of imprisonment. Stock appeals, arguing that the counts of conviction should

have been merged. We affirm.

Stock had downloaded pornographic images of children using a laptop

computer, peer to peer software, and the internet. He was charged in a four count

indictment with one count of receipt of child pornography in violation of 18 U.S.C.

§§ 2252A(a)(2)(A), 2252A(b)(1), and three counts of possession of child

pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2). He pled

guilty under a plea agreement to two counts of possession of child pornography. One

was based on his possession of images stored on a laptop, and the other was based on

his possession of images on an external hard drive. In exchange for his guilty pleas,

the government agreed to dismiss the other two counts. 

After the district court accepted Stock's guilty pleas, he filed a motion to merge

the counts to which he had pled. He argued that if judgment were entered on both

counts, he would be punished twice for the same criminal conduct in violation of the

double jeopardy clause because both counts charged possession of child pornography

at the same time and place. The district court ruled that Stock had waived his right

to challenge the indictment because he had pled guilty to the two charges and his

guilty pleas had been accepted by the court. It concluded that Stock's admitted

conduct of possessing child pornography on two separate devices could be charged

as separate crimes and sentenced him to 135 months. Stock appeals, arguing that the

charges to which he pled should have been regarded as a single offense.

We conclude that by pleading guilty, Stock waived his merger argument. Our

cases indicate that "[a] valid guilty plea is an admission of guilt that waives all nonThe Honorable Linda R. Reade, Chief Judge, United States District Court for

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the Northern District of Iowa.

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jurisdictional defects and defenses." United States v. Limley, 510 F.3d 825, 827 (8th

Cir. 2007). Stock nevertheless contends that he did not waive his merger argument

because his challenge is based on an alleged double jeopardy violation. Menna v.

New York, 423 U.S. 61, 62 (1975) (per curiam). We have previously noted the

limited reach of the case on which Stock relies because as later explained, "a guilty

plea does foreclose a double jeopardy attack on a conviction unless, as in Menna, 'on

the face of the record the court had no power to enter the conviction or impose the

sentence.'" United States v. Vaughan, 13 F.3d 1186, 1188 (8th Cir. 1994) (quoting

United States v. Broce, 488 U.S. 563, 569 (1989)). In Broce, the Supreme Court

made clear that by pleading guilty "to two counts with facial allegations of distinct

offenses" a defendant concedes "that he has committed two separate crimes," and in

thatsituation there was no double jeopardy violation on the face of the record. Broce,

488 U.S. at 570, 576.

 

By pleading guilty to two counts of possession of child pornography, Stock

admitted that he had committed two separate crimes. He has therefore waived his

double jeopardy challenge. We are foreclosed from reviewing Stock's claims since

"waived claims are unreviewable on appeal." United States v. Booker, 576 F.3d 506,

511 (8th Cir. 2009). We need not conduct any further review. Accordingly, we

affirm the judgment of the district court.

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