Submitted: August 13, 2019
Appeal
from United States District Court for the Northern District
of Iowa - Cedar Rapids
Before
SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
MELLOY, Circuit Judge.
In
2017, Defendant Craig Watters pleaded guilty to the charge of
distributing child pornography in violation of 18 U.S.C.
§§ 2252(a)(2) and (b)(1). The district
court[1] imposed a sentence at the bottom of the
advisory guidelines range, 262 months, but ordered the
sentence to run consecutive to the remaining portion of an
earlier-imposed, 60-month, revocation-of-supervised-release
sentence under 18 U.S.C. § 3583(k). Watters argues the
current sentence punishes the same conduct as the revocation
sentence in violation of the Fifth Amendment's
prohibition on double jeopardy. He also argues the current
sentence is substantively unreasonable. After the Supreme
Court held § 3583(k) unconstitutional in United
States v. Haymond, 139 S.Ct. 2369 (2019), we ordered
supplemental briefing. We now affirm.
I.
In
2007, Watters pleaded guilty to one count of receipt of child
pornography under 18 U.S.C. §§ 2252A(a)(2)(A) and
2252A(b)(1). His offense carried a statutory maximum sentence
of 240 months' imprisonment and his advisory guidelines
range was 210-240 months. He received a substantially
below-range sentence of 60 months' imprisonment and a
lifetime of supervised release. He began serving his term of
supervised release for the 2007 conviction in February 2012.
In
2014, monitoring software on Watters's personal computer
revealed suspected child pornography. At a 2014 revocation
hearing, the district court found Watters had violated the
terms of his supervised in several respects. Videos obtained
from Watters's computer depicted prepubescent children
engaged in oral and anal sex with adult males. In addition,
the government introduced evidence of Watters's online
chats and emails including screen shots of images of child
pornography that Watters had sent and received. The district
court found Watters had received, possessed, and distributed
child pornography in violation of his supervised release. As
a result, the district court imposed a mandatory 60-month
revocation sentence under 18 U.S.C. § 3583(k) and
reimposed a lifetime of supervised release.
Watters
did not appeal his revocation sentence. When coupled with his
original term of imprisonment for the 2007 conviction, his
total term of incarceration was 120 months-half of the
statutory maximum and substantially below his original
advisory guidelines range.
After
imposition of the revocation sentence, investigation
continued, and officers discovered that Watters also
possessed additional files containing child pornography not
identified at the time of revocation. These files included 29
videos of adult males sexually penetrating prepubescent
children. In addition, officers discovered Watters had used
Skype to trade child pornography.
In
2017, the United States charged Watters with several counts
of distributing, receiving, and possessing child pornography,
listing the 2007 conviction as a prior offense for statutory
enhancement purposes. The underlying evidence to support the
new charges included the evidence known at the time of the
revocation proceedings and the later-discovered evidence. In
November 2017, Watters pleaded guilty to distributing child
pornography in violation of 18 U.S.C. §§ 2252(a)(2)
and 2252(b)(1).
In May
2018, the district court sentenced Watters to 262 months'
imprisonment based on an advisory guidelines range of 262-327
months. The district court ordered the new sentence to run
consecutive to the 2014 revocation sentence. At the time of
Watters's 2018 sentencing, he had approximately six
months remaining to be served on his unappealed 2014
revocation sentence.[2]
At the
2018 sentencing, defense counsel requested a downward
variance from 262 months to 202 months to account for the
previously imposed, 60-month revocation sentence. In
advocating for a 202-month sentence, counsel neither asserted
a double jeopardy argument nor challenged the validity of the
unappealed 2014 supervised release violation. In rejecting
Watters's arguments, the district court discussed
information contained in unobjected-to paragraphs of the
Presentence Investigation Report that indicated Watters had
participated in sex offender treatment and counseling but had
not been successful in addressing his desire for child
pornography. In fact, he had consistently attempted to
minimize his culpability, denying that he received any sexual
gratification from such materials. The court also emphasized
that Watters engaged in conduct beyond the possession and
distribution of child pornography, ...