United States v. John Charles Kuchinski

John C. Kuchinski appeals his conviction and sentence for receipt and possession of child pornography. 18 U.S.C. §§ 2252A(a)(2), (a)(5)(B). Principally, he asserts that his prosecution for receipt and possession violated the double jeopardy clause, that any use of the United States Sentencing Guidelines violates the separation of powers doctrine, and that he was improperly sentenced when all child pornography images on his computer were counted for sentencing purposes. We affirm his conviction, but vacate his sentence and remand.

BACKGROUND

After obtaining information that Kuchin-ski was involved in child pornography, the FBI obtained a search warrant for his computer. Upon execution of that warrant, between 15,120 and 19,000 separate images of child pornography were recovered therefrom. Sixteen of those images were located in the computer’s downloaded files and 94 were located in its deleted files (recycle bin). Kuchinski does not argue that he is not responsible for the possession of those images. However, 1,106 images were in the Active Temporary Internet Files and another 13,904 to 17,784 images were in the Deleted Temporary Internet Files. Thereafter, Kuchinski was indicted…