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United States of America v. Randy Lee Johnson, Jr

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Submitted: September 24, 2010

Before BYE, BEAM, and SMITH, Circuit Judges.

A jury convicted defendant Randy Lee Johnson, Jr., (Johnson) of knowingly receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2), and knowingly possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The district court sentenced him to 135 months’ imprisonment for the receipt conviction and 120 months’ imprisonment for the possession conviction, to be served concurrently. On appeal, Johnson asserts that there is insufficient evidence to support his receipt conviction or, in the alternative, that his convictions for both receiving and possessing the same images of child pornography violate the Double Jeopardy Clause. The government asserts that there is sufficient evidence to support the receipt conviction, but duly concedes that there is a Double Jeopardy violation if both convictions stand. See United States v. Muhlenbruch, 634 F.3d 987, 1002-04 (8th Cir. 2011) (holding, under plain error review, that defendant’s convictions for both possessing and receiving child pornography under 18 U.S.C. § 2252(a)(2), (4)(B), violated the Double Jeopardy Clause where the convictions were based on the same facts and images). We hold that there was insufficient evidence to support the receipt conviction. Therefore, we reverse and vacate the receipt conviction and remand for resentencing on the possession conviction.

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