United States v. Ralph Fox

MEMORANDUM

Ralph Leon Fox appeals from his convictions for child sexual exploitation in violation of 18 U.S.C. § 2251 (a), receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2), and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and from the imposition of consecutive sentences totaling 110 years.

1. Fox contends that his conviction for both receiving and possessing child pornography violates double jeopardy under United States v. Davenport, 519 F.3d 940, 947 (9th Cir.2008). In light of the conduct proven on the child sexual exploitation count, the trier of fact necessarily found at trial that Fox engaged in conduct supporting a possession conviction that was distinct from the conduct underlying the conviction for receiving child pornography. The allegations in the possession count of the indictment were sufficient to support Fox’s possession conviction on the basis of this separate conduct. Cf United States v. Overton, 573 F.3d 679 , 696 n. 16 (9th Cir.2009). Possession is not a lesser included offense of exploitation, so there was no double jeopardy violation. Given the district court’s implicit factual determinations at trial, we…