USA v. Damion Faulkner
OPINION filed : We REMAND the case for further proceedings so that the district court can determine whether Faulkner s receipt and possession offenses are based on the same child pornography or different child pornography. Decision not for publication. Gilbert S. Merritt (CONCURRING), Eric L. Clay (AUTHORING), and Jeffrey S. Sutton, Circuit Judges.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0192n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Apr 12, 2018
DEBORAH S. HUNT, Clerk
DAMION D. FAULKNER,
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
MERRITT, CLAY, and SUTTON, Circuit Judges.
CLAY, Circuit Judge. Defendant Damion D. Faulkner appeals his convictions and
sentences for multiple child pornography offenses under 18 U.S.C. § 2251 and 18 U.S.C.
§ 2252A. He argues that his convictions and sentences for receiving and possessing child
pornography violate the Double Jeopardy Clause and that the district court made various other
errors at sentencing. For the reasons set forth below, we REMAND the case with instructions
for the district court to determine whether Faulkner’s convictions for receiving and possessing
child pornography were based on the same pornographic images or different pornographic
images. We do not address Faulkner’s remaining challenges.
FACTUAL AND PROCEDURAL HISTORY
Faulkner’s background suggests a history of pedophilia. On about five occasions in
2006, Faulkner fondled his five-year-old niece, M.F., with his hands. He also took pictures of
M.F. while she was asleep, one time moving aside her shorts to see her underwear. When M.F.
told her mother what Faulkner had done, she was taken to the hospital. However, no evidence of
sexual contact was found and the matter was dropped.
Around seven years later, on July 20, 2013, Faulkner took pornographic photographs and
a pornographic video of O.B., his niece’s five-year-old stepsister. O.B. was sleeping at the time,
and Faulkner pulled back her shorts and underwear so he could focus on her vaginal area,
touching her with his fingers. In the ensuing months, Faulkner emailed the pornographic images,
and sometimes the video, to at least 10 different individuals.
The next day, July 21, 2013, Faulkner again attempted to produce pornographic
photographs of O.B. Specifically, he watched O.B. and M.F. (who was 11 at the time) play
together, hoping to catch O.B. in a sexual pose. However, he failed to take any provocative
pictures. His photographs—some of which included M.F.—were not overtly sexual.
Authorities eventually became aware of Faulkner’s online pornographic activity. On
January 3, 2014, police executed a search warrant at Faulkner’s residence. Faulkner immediately
confessed to producing and distributing pornographic images and video of O.B. When police
told Faulkner he could spare his victims further trauma by admitting to previous misconduct,
Faulkner confessed to molesting M.F. in 2006. A search of Faulkner’s computer revealed the
photographs and video of O.B. and M.F, as well as 3,300 images and 103 videos of child
pornography. In addition, Faulkner had saved approximately 200 images of child pornography
from his email account to his cell phone’s media card.
In June 2016, the government filed a 15-count superseding indictment against Faulkner,
charging him with the following crimes:
Production of Child Pornography on or about July 20, 2013, in violation of 18 U.S.C.
§ 2251(a) and (d) (Count 1);
Production and Attempted Production of Child Pornography on or about July 21, 2013, in
violation of 18 U.S.C. § 2251(a) and (d) (Count 2);
Eleven counts of Transportation of Child Pornography on various dates in July, August,
September, and October 2013, in violation of 18 U.S.C. § 2252A(a)(1) and (b) (Counts
Receipt of Child Pornography between March 11, 2013 and November 14, 2013, in
violation of 18 U.S.C. § 2252A(a)(2)(a) and (b) (Count 14); and
Possession of Child Pornography on or about January 3, 2014, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b) (Count 15).
Faulkner pleaded guilty to all counts. With regard to the receipt and possession counts, Faulkner
admitted that he had received and possessed child pornography. However, he did not admit to
receiving or possessing any images or videos in particular. At the end of the plea hearing, the
district court explained—and both parties agreed—that Faulkner “can appeal the sentence
imposed as well as the finding of guilt.”
As relevant here, the PSR determined that counts 1 and 2 (production and attempted
production of child pornography of O.B.) caused separate harms, and therefore could not be
grouped in the guidelines offense-level calculations. This determination increased Faulkner’s
overall offense-level from 42 to 43. In addition, the PSR determined that Faulkner had two
criminal history points, one for his shoplifting conviction and another for his drunk-driving
conviction. That put Faulkner in criminal history category II. At Faulkner’s offense level and
criminal history category, the guidelines range was life imprisonment. However, because life
imprisonment was not authorized for any of his crimes, Faulkner’s guidelines range became the
maximum sentence he could receive for each offense, imposed consecutively. See U.S.S.G.
§ 5G1.2(d). That figure corresponded to 320 years’ imprisonment—30 years on counts 1 and 2
plus 20 years on counts 3 through 15.
At sentencing, Faulkner argued, among other things, that counts 1 and 2 should have
been grouped together in his guidelines offense-level calculations. The district court rejected this
argument, reasoning that counts 1 and 2 caused separate, distinct harms.
In addition to
contesting the district court’s guidelines calculations, Faulkner requested leniency and expressed
remorse. Faulkner was ultimately given a below-guideline sentence of 55 years’ imprisonment.
On appeal, Faulkner argues that his convictions for receiving and possessing child
pornography violate the Double Jeopardy Clause; that his convictions for production and
attempted production of child pornography should have been grouped together under guideline
§ 3D1.2(b); that his criminal history was overstated; and that his sentence was substantively
We first consider Faulkner’s Double Jeopardy challenge. Because we remand for further
proceedings related to this issue, we do not reach Faulkner’s remaining challenges.
Standard of Review
Although Faulkner did not raise any Double Jeopardy claim in the district court, he
argues that we should nonetheless review his challenge de novo. (See Def.’s Reply Br. at 6–7
(citing United States v. Rosenbarger, 536 F.2d 715, 721–22 (6th Cir. 1976)).) The government
disagrees, arguing that we should review Faulkner’s claim for plain error. (See Gov’t Br. at 20
(citing United States v. Dudeck, 657 F.3d 424, 427 (6th Cir. 2011)).) We need not resolve this
dispute because, as discussed below, Faulkner is entitled to a remand under either standard.
Under the Fifth Amendment’s Double Jeopardy Clause, a defendant cannot be put “in
jeopardy of life or limb” twice for the same offense. U.S. Const. amend. V. (“nor shall any
person be subject for the same offense to be twice put in jeopardy of life or limb”). The Supreme
Court interpreted this requirement in Blockburger v. United States, explaining that “the same act
or transaction constitutes a violation of two distinct statutory provisions”—and therefore
comports with the Double Jeopardy Clause—when “each provision requires proof of a fact
which the other does not.” 284 U.S. 299, 304 (1932).
In United States v. Ehle, 640 F.3d 689 (6th Cir. 2011), we held that possession of child
pornography does not require proof of any fact that the receiving provision does not. See
18 U.S.C. § 2252A(a)(2)(A), (a)(5)(B). “[O]ne obviously cannot ‘receive’ an item without then
also ‘possessing’ that item, even if only for a moment.” Ehle, 640 F.3d at 695. Consequently,
convicting a defendant for both offenses violates the Double Jeopardy Clause unless the
convictions stem from different acts or transactions. Id. at 694–96. The government argues that
Faulkner’s receipt and possession convictions were based on separate conduct because: (1) the
offenses took place on different dates; (2) Faulkner received his photographs through the internet
but possessed them on the media card of his cell phone; and (3) the offenses involved different
We reject the government’s first argument—that Faulkner’s receipt and possession
offenses are distinct because they occurred on different dates. Indeed, we addressed this exact
issue in Ehle. In Ehle, the defendant was charged with receiving child pornography from the
internet between 2006 and April 2007 and then possessing that same pornography on his
computer and “stacks of computer disks” in April 2007. Id. at 696. We found that punishing a
defendant for both receiving and possessing the same images would “require wholly subjective
line-drawing to determine when possession incidental to receiving morphs into possession
independent of the reception.” Id. Accordingly, we held that a defendant cannot be convicted of
receiving child pornography on one date and possessing that same child pornography on a later
date. Id. at 696–98. Applying Ehle to this case, Faulkner’s receipt and possession offenses are
not distinct solely because they occurred on different dates.
We also reject the government’s second argument—that Faulkner’s receipt and
possession offenses were based on separate conduct because he received pornographic images at
his email address, but later possessed pornographic images on the media card of his cell phone.
Again, Ehle is instructive. In Ehle, the defendant downloaded pornographic images to his
computer and later transferred them to “stacks of computer disks.” Id. at 696. The government
argued that as of a result of this transfer between electronic media, the receipt and possession
offenses were based on separate conduct. We disagreed, explaining that “electronically
transferring the pornography to different locations” is insufficient by itself to support separate
convictions for receiving and possessing child pornography. Id. Ehle is binding on us as a
published case. Consequently, we do not follow a later case, United States v. Ogden, 685 F.3d
600, 603 (6th Cir. 2012), that approached this issue differently.1 See Salmi v. Sec’y of Health &
Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel of this Court cannot overrule the
decision of another panel. The prior decision remains controlling authority unless an inconsistent
decision of the United States Supreme Court requires modification of the decision or this Court
sitting en banc overrules the prior decision.”).
Finally, we consider the government’s third argument—that Faulkner’s receipt and
possession convictions were based on different child pornography. Unfortunately, because the
record is silent as to which particular images or videos supported Faulkner’s receipt and
possession convictions, we cannot resolve this argument. Accordingly, we remand the case for
further proceedings so that the district court can determine whether Faulkner’s receipt and
possession offenses are based on the same child pornography or different child pornography.
Our discussion here applies only to the electronic transfer of pornographic images. We
need not decide whether the Double Jeopardy Clause permits separate convictions for receipt and
possession of child pornography if the defendant received a particular physical copy of an image,
but later possessed a different physical copy of that same image.
See Dudeck, 657 F.3d at 433 (remanding the case to the district court “for a determination as to
whether Counts One, Two and Three are supported by separate conduct or images”).
Given our ruling on the Double Jeopardy issue, we do not reach Faulkner’s remaining
For the foregoing reasons, we REMAND the case for further proceedings so that the
district court can determine whether Faulkner’s receipt and possession offenses are based on the
same child pornography or different child pornography.
MERRITT, Circuit Judge, concurring. I am a bit confused about how the district
court got to a 55-year de facto life sentence in this case and about what the Court is ordering the
district court to do on remand, but I do concur in reversing and remanding the case to the district
court for further consideration.
On the double jeopardy issue discussed in the Court’s opinion, there are no facts in the
record suggesting that the pornographic images “received” by the defendant were any different
from those he continued to possess on his cell phone’s media card. It seems apparent that the
same material “received” was then “possessed.” There are no facts different in the receiving and
possessing charges. The material is the same, and there should not have been double punishment
for the same offense.
I also think that Count II based on the government’s charge of “attempt” does not state an
offense and ought to be dismissed under Rule 12(b) of the Federal Rules of Criminal Procedure.
The pictures referred to in Count II that the defendant took on July 21 do not support a valid
conviction for “attempt.” In those pictures incorporated in Count II, whatever may have been the
defendant’s “intent,” the two girls shown in the pictures are fully clothed and the pictures could
not reasonably be considered “pornographic.” They may constitute the invasion of the right to
privacy and constitute “harm” in that sense. But I cannot see how taking and distributing
pictures of fully clothed girls could constitute the crime of “attempted” production of child
pornography. See United States v. Sims, 708 F.3d 832, 835 (6th Cir. 2013) (citations omitted)
(conviction requires proof that the defendant “specifically intended to create child pornography”
and “took a substantial step towards the creation of child pornography”). Here the act of taking
the fully clothed pictures makes the completed crime itself impossible. I do agree, however, that
the word “attempt” in this context is vague and could include many things. The rule of lenity in
interpreting ambiguity counsels against increasing the harshness of the punishment by giving the
crime of “attempt” an expansive interpretation.
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