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United States v. Watters

United States Court of Appeals, Eighth Circuit

January 10, 2020

United States of America Plaintiff- Appellee
v.
Craig Watters Defendant-Appellant

          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, ...


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