United States v. Planck, 493 F.3d 501 (5th Cir. 2007). · Go Syfert
United States v. Planck, 493 F.3d 501 (5th Cir. 2007). Cases Citing This Book View Copy Cite
“through different transactions, planck possessed child pornography in three separate places-a laptop and desktop computer and diskettes-and, therefore, committed three separate crimes.”
95 citation events (95 in the last 25 years) across 19 distinct courts.
Strongest positive: United States v. Bopp (ca5, 2023-08-23)
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Top citers, strongest first. 41 distinct citers. How cited ↗
discussed Cited as authority (quoted) United States v. Bopp
5th Cir. · 2023 · signal: cf. · quote attribution · 1 verbatim quote · confidence low
through different transactions, planck possessed child pornography in three separate places-a laptop and desktop computer and diskettes-and, therefore, committed three separate crimes.
discussed Cited as authority (rule) United States v. Coley (2×) also: Cited "see"
A.F.C.C.A. · 2026 · confidence medium
“To resolve this ‘spe- cies’ of multiplicity, the Court ‘must first determine the allowable unit of pros- ecution, . . . which is the actus reus of the defendant.’” Forrester, 76 M.J. at 485 (omission in original) (quoting United States v. Planck, 493 F.3d 501, 503 (5th Cir. 2007)) (additional citation omitted). c.
discussed Cited as authority (rule) United States v. Casillas (2×)
A.F.C.C.A. · 2025 · confidence medium
“To resolve this ‘species’ of multiplicity, the Court ‘must first determine the “allowable unit of prosecution,” . . . which is the actus reus of the defendant.’” Forrester, 76 M.J. at 485 (quoting United States v. Planck, 493 F.3d 501, 503 (5th Cir. 2007)).
discussed Cited as authority (rule) Rudy Desmond Toler a/k/a Ruby Desmond Toler a/k/a Rudy D. Toler a/k/a Rudy Toler v. State of Mississippi
Miss. · 2024 · confidence medium
“In that circumstance, the court inquires ‘whether separate and distinct prohibited acts, made punishable by law, have been committed.’” Id. (quoting 13 United States v. Planck, 493 F.3d 501, 503 (5th Cir. 2007)).
discussed Cited as authority (rule) Donaldson v. Lumpkin
W.D. Tex. · 2024 · confidence medium
Where multiple convictions are imposed pursuant to a single statute, the Court must determine “whether separate and distinct prohibited acts, made punishable by law, have been committed.” United States v. Planck, 493 F.3d 501, 503 (5th Cir. 2007).
cited Cited as authority (rule) United States v. Naidoo
5th Cir. · 2021 · confidence medium
In such a case, we inquire “whether separate and distinct prohibited acts, made punishable by law, have been committed.” Id. (quoting United States v. Planck, 493 F.3d 501, 503 (5th Cir. 2007)).
cited Cited as authority (rule) United States v. Vallare
5th Cir. · 2021 · confidence medium
He concedes that this argument is foreclosed by United States v. Planck, 493 F.3d 501, 503-05 (5th Cir. 2007), but he seeks to preserve the issue for further review.
discussed Cited as authority (rule) United States v. Cline (2×) also: Cited "see, e.g."
5th Cir. · 2021 · confidence medium
United States v. Planck, 493 F.3d 501, 503 (5th Cir. 2007).
discussed Cited as authority (rule) v. Bott
Colo. · 2020 · confidence medium
Similarly, because the items as to which separate 14 conviction and punishment at issue here were all found on a single memory card possessed or controlled by the defendant, we need not determine whether possession pursuant to subsection (3)(b.5) inherently includes any limitation as to time, location, or simultaneity of possession.4 Compare United States v. Prestenbach, 230 F.3d 780, 783 (5th Cir. 2000) (reasoning that “[i]f the contraband is possessed at a single place and time, there is a single act of possession and a single crime” in holding that keeping four altered money orders in a…
cited Cited as authority (rule) United States v. Juan Chilaca
9th Cir. · 2018 · confidence medium
And, as Chiaradio noted, the Schales dictum relied on United States v. Planck, 493 F.3d 501, 504 (5th Cir. 2007), which interpreted § 2252A, not § 2252(a)(4)(B).
examined Cited as authority (rule) United States v. Forrester (4×)
C.A.A.F. · 2017 · confidence medium
App. 2008), rev’d in part on other grounds, 68 M.J. 217 (C.A.A.F. 2009)); United States v. Planck, 493 F.3d 501, 505 (5th Cir. 2007)).
cited Cited as authority (rule) United States v. Forrester
N.M.C.C.A. · 2016 · confidence medium
Id. at 504 (internal citation omitted).
discussed Cited as authority (rule) United States v. Self
D. Ariz. · 2015 · confidence medium
Woerner was founded upon the Fifth Circuit’s analysis in U.S. v. Planck, 493 F.3d 501, 504 (5th Cir.2007) (“where a defendant has images stored in separate materials (as defined in 18 U.S.C. § 2252A), such as a computer, a book, and a magazine, the Government may charge multiple counts, each for the type of material or media possessed”).
examined Cited as authority (rule) United States v. Mark Woerner (3×) also: Cited "see"
5th Cir. · 2013 · confidence medium
In that circumstance, the court inquires “whether separate and distinct prohibited acts, made punishable by law, have been committed.” United States v. Planck, 493 F.3d 501, 503 (5th Cir.2007).
discussed Cited as authority (rule) United States v. Young
10th Cir. · 2012 · confidence medium
See United States v. Daniels, 541 F.3d 915, 923 (9th Cir.2008) (upholding lifetime of supervision for possession of child pornography in part because the policy statement accompanying U.S.S.G. § 5Dl’.2(b)(2) “reflects the judgment of Congress and the Sentencing Commission that a lifetime term of supervised release is appropriate for sex offenders in order to protect the public”); United States v. Planck, 493 F.3d 501, 505 (5th Cir.2007) (upholding life term of supervised release as reasonable sentence for conviction of possession of child pornography); United States v. Presto, 498 F.3d …
cited Cited as authority (rule) United States v. Om Budha
5th Cir. · 2012 · confidence medium
When deciding a multiplicity claim, we “look to whether separate and distinct prohibited acts, made punishable by law, have been committed.” United States v. Planck, 493 F.3d 501, 503 (5th Cir.2007).
discussed Cited as authority (rule) United States v. Chiaradio (2×)
1st Cir. · 2012 · confidence medium
The government's reliance on case law approving the charging of multiple possession counts under section 2252A(a)(5)(B), see, e.g., United States v. Hinkeldey, 626 F.3d 1010, 1014 (8th Cir. 2010); United States v. Planck, 493 F.3d 501, 503-05 (5th Cir. 2007), is equally misplaced.
discussed Cited as authority (rule) United States v. Marc Accardi
D.C. Cir. · 2012 · confidence medium
See Daniels, 541 F.3d at 924 (“The district court was within its discretion to conclude that a lifetime term of supervised release was necessary to punish Daniels ..., to rehabilitate him, and to protect the public[.]”); United States v. Cope, 527 F.3d 944, 952 (9th Cir.2008) (basing sentence on general concerns about recidivism and protection of the public); United States v. Planck, 493 F.3d 501, 506 (5th Cir.2007); Gonzalez, 445 F.3d at 819 (“The Court finds a supervised release term of life will benefit society and reflects the Court’s experience that persons rarely get better in th…
discussed Cited as authority (rule) United States v. Richards (2×)
6th Cir. · 2011 · confidence medium
Cf. United States v. Hinkeldey, 626 F.3d 1010, 1012-14 (8th Cir.2010) (holding that the defendant's rights under the Double Jeopardy Clause were not violated by the district court's refusal to treat the six counts of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) as one for sentencing purposes, where the indictment *548 charged one possession count each for images stored on his computer, zip drive, and four computer disks); United States v. Schales, 546 F.3d 965, 979 (9th Cir.2008) ("[W]here a defendant has stored sexually explicit images in separate mediums, the government …
examined Cited as authority (rule) United States v. Hinkeldey (4×) also: Cited "see"
8th Cir. · 2010 · confidence medium
Planck, 493 F.3d at 504 (emphasis added).
discussed Cited as authority (rule) United States v. Richard McGlothlin
7th Cir. · 2010 · confidence medium
And with respect to lifetime supervision, 18 U.S.C. § 3583 (k) authorizes a term of supervised release of five years to life for a defendant convicted of producing child pornography, and the sentencing guidelines recommend that district courts impose the maximum term, see U.S.S.G. § 5D1.2(b)(2) (policy statement) & cmt. 1; United States v. Kennedy, 499 F.3d 547, 553 (6th Cir. 2007); United States v. Planck, 493 F.3d 501, 505 (5th Cir. 2007).
discussed Cited as authority (rule) United States v. McGlothlin
7th Cir. · 2010 · confidence medium
And with respect to lifetime supervision, 18 U.S.C. § 3583 (k) authorizes a term of supervised release of five years to life for a defendant convicted of producing child pornography, and the sentencing guidelines recommend that district courts impose the maximum term, see U.S.S.G. § 5D1.2(b)(2) (policy statement) & cmt. 1; United States v. Kennedy, 499 F.3d 547, 553 (6th Cir.2007); United States v. Planck, 493 F.3d 501, 505 (5th Cir.2007).
discussed Cited as authority (rule) United States v. Saxman
N.M.C.C.A. · 2010 · confidence medium
LEXIS 20818 (9th Cir.2009); United States v. Planck, 493 F.3d 501, 504 (5th Cir.2007) (discussing propriety of charging one count of possession for each piece of media possessed); United States v. Thompson, 281 F.3d 1088, 1090-91 (10th Cir.2002)(drawing distinction between properly charging one count of possession for each piece of media but then examining the number of files possessed on that media to determine a sentence).
discussed Cited as authority (rule) United States v. Reagan (2×)
5th Cir. · 2010 · confidence medium
Soape’s monetary sanctions therefore depend on the validity of each count, including the allegedly multiplicitous ones, and the concurrent sentence doctrine does not apply.”). 3 No. 08-11006 “Multiplicity claims are reviewed de novo.” United States v. Planck, 493 F.3d 501, 503 (5th Cir. 2007).
discussed Cited as authority (rule) United States v. Reagan (2×)
5th Cir. · 2010 · confidence medium
“Multiplicity claims are reviewed de novo.” United States v. Planck, 493 F.3d 501, 503 (5th Cir.2007).
examined Cited as authority (rule) United States v. Overton (3×) also: Cited "see"
9th Cir. · 2009 · confidence medium
Following our sister circuit, we concluded that “where a defendant has stored sexually explicit images in separate mediums, the government may constitutionally charge that defendant with separate counts for each type of material or media possessed.” Id. (citing Planck, 493 F.3d at 504 (“[W]here a defendant has images stored in separate materials (as defined in 18 U.S.C. § 2252A), ... the Government may charge multiple counts, each for the type of material or media possessed, as long as the prohibited images were obtained through the result of different transactions.”)).
discussed Cited as authority (rule) United States v. Walter Overton (2×) also: Cited "see"
9th Cir. · 2009 · confidence medium
After all, as the Fifth Circuit reasoned in Planck, “[a] contrary result would allow amassing a warehouse of child porno- graphic materials . . . with only a single count of possession as a potential punishment.” 493 F.3d at 504 (holding that because Planck possessed child pornography in three separate places, i.e., a laptop, a desktop computer, and diskettes, he committed three different crimes and his conviction on three possession counts was not multiplicitous).
examined Cited as authority (rule) United States v. Overton (3×) also: Cited "see"
9th Cir. · 2009 · confidence medium
Following our sister circuit, we con- cluded that “where a defendant has stored sexually explicit images in separate mediums, the government may constitu- tionally charge that defendant with separate counts for each type of material or media possessed.” Id. (citing Planck, 493 F.3d at 504 (“[W]here a defendant has images stored in sepa- rate materials (as defined in 18 U.S.C. § 2252A), . . . the Gov- ernment may charge multiple counts, each for the type of material or media possessed, as long as the prohibited images were obtained through the result of different transactions.”)).
discussed Cited as authority (rule) United States v. Craig
N.M.C.C.A. · 2009 · confidence medium
In so holding, we relied in part on the reasoning of the Fifth Circuit in United States v. Planck, 493 F.3d 501, 504 (5th Cir.2007), which held that “[wjhere a defendant has a single envelope or book or magazine containing many images of minors engaging in sexual activity, the government often should charge only a single count.” (Citation and internal quotation marks omitted).
discussed Cited as authority (rule) United States v. Martinez
W.D. Tex. · 2009 · confidence medium
“The rule against multiplicitous prosecutions stems from the Fifth Amendment’s proscription against double jeopardy.” United States v. Planck, 493 F.3d 501, 503 (5th Cir.2007) (citing United States v. Kimbrough, 69 F.3d 723, 729 (5th Cir.1995)).
discussed Cited as authority (rule) United States v. Campbell (2×)
N.M.C.C.A. · 2008 · confidence medium
He argued that “despite the possession of child pornography in three different types of devices, his acts still constituted only a single violation of § 2252A(a)(5)(B), because he was found in possession of the images at the same time and place.” Planck, 493 F.3d at 503 (italics in original).
discussed Cited "see" United States v. Willis (2×)
5th Cir. · 2023 · signal: accord · confidence high
United States v. Harper, 802 F.2d 115 , 118 n.4 (5th Cir. 1986); accord Planck, 493 F.3d at 504 (“[A] defendant could be charged with multiple violations of [§ 922] for receipt or possession of different firearms at different times.”); United States v. Jones, 601 F.3d 1247, 1259 (11th Cir. 2010) (“[W]here a defendant has possessed different weapons at different times or places, the [G]overnment may treat them as separate units of prosecution and charge multiple counts.”).
cited Cited "see" United States v. Mayra Godines-Alvarez
5th Cir. · 2016 · signal: see · confidence high
See United States v. Planck, 493 F.3d 501, 503 (5th Cir.2007); United States v. Cowart, 595 F.2d 1023, 1029 (5th Cir.1979); Puckett, 556 U.S. at 135 , 129 S.Ct. 1423 .
cited Cited "see" United States v. Earline Rawls
5th Cir. · 2011 · signal: see · confidence high
See United States v. Planck, 493 F.3d 501, 503 (5th Cir.2007).
discussed Cited "see" Pontius v. State
Ind. Ct. App. · 2010 · signal: see · confidence high
See U.S. v. Planck, 493 F.3d 501, 504 (5th Cir.2007) ("[Wlhere a defendant has images stored in separate materials, ... the Government may charge multiple counts ... as long as the prohibited images were obtained through the result of different transactions.").
discussed Cited "see" United States v. Church (2×) also: Cited "see, e.g."
W.D. Va. · 2010 · signal: see · confidence high
See United States v. Planck, 493 F.3d 501, 505 (5th Cir.2007) (recognizing that as a consequence of the possession and distribution of child pornography, “a child may be victimized in three distinct ways”); United States v. Paroline, 672 F.Supp.2d 781, 785-86 (E.D.Tex.2009) (same).
cited Cited "see" United States v. Schales
9th Cir. · 2008 · signal: see · confidence high
See United States v. Planck, 493 F.3d 501, 504-05 (5th Cir.2007).
cited Cited "see" United States v. Schales
9th Cir. · 2008 · signal: see · confidence high
See United States v. Planck, 493 F.3d 501, 504-05 (5th Cir. 2007).
discussed Cited "see" United States v. Kun Yun Jho
5th Cir. · 2008 · signal: see · confidence high
See United States v. Planck, 493 F.3d 501, 503 (5th Cir.2007) (“In deciding whether an indictment is multiplicitous, we look to whether separate and distinct prohibited acts, made punishable by law, have been committed.”).
discussed Cited "see" United States v. Thomas Martin
8th Cir. · 2008 · signal: see · confidence high
See United States v. Planck, 493 F.3d 501, 503-05 (5th Cir.2007) (affirming conviction on three separate counts of possessing child pornography under § 2252A(b)(5)(B) where images were found in three different places: desktop computer, laptop computer, and diskettes); Swepston v. United States, 289 F.2d 166, 168 (8th Cir.1961) (right to impose consecutive sentences for separate counts is inherent in federal courts); see also U.S.S.G. § 5G1.2(d) (if sentence imposed on count carrying highest statutory maximum is less than total punishment, sentence imposed on other counts shall run consecutiv…
discussed Cited "see, e.g." United States v. Chow
S.D.N.Y. · 2010 · signal: see also · confidence medium
Indeed, “[c]ourts have regularly recognized three distinct harms visited upon those who were abused in child pornography as a consequence of the later distribution or possession of such images.” United States v. Church, 701 F.Supp.2d 814, 820 (W.D.Va. 2010); see also United States v. Planck, 493 F.3d 501, 505 (5th Cir.2007) (finding that possession of child pornography is a “crime[ ] perpetrated against a minor” that “victimize[s] [the child] in three distinct ways”); United States v. Norris, 159 F.3d 926, 929-30 (5th Cir.1998) (holding that children depicted in child pornography a…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
John Anthony PLANCK, Defendant-Appellant
05-21040.
Court of Appeals for the Fifth Circuit.
Jul 19, 2007.
493 F.3d 501
Jeffery Alan Babcock (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S., Marjorie A. Meyers, Fed. Pub. Def., Philip G. Gallagher (argued), Houston, TX, for Planck.
Jones, Wiener, Barksdale.
Cited by 46 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 93%
Citer courts: Fifth Circuit (1)

Lead Opinion

RHESA HAWKINS BARKSDALE, Circuit Judge:

For his seven guilty-plea convictions concerning child pornography, John Anthony Planck challenges only his three possession convictions, contending the underlying counts are multiplicitious. Regarding his sentence, he challenges the imposition of a life term of supervised release. AFFIRMED.

I.

In 2003, United States Immigration and Customs Enforcement Agents were engaged in an online child-pornography investigation. Planck was identified as a computer user responsible for uploading child pornographic images onto a Government-monitored website. In August 2004, a search warrant was executed at his residence; a desktop computer, laptop computer, and 223 computer diskettes were seized.

The desktop computer contained 88 videos and still child-pornography photographs; the laptop computer, four still photographs; and the diskettes, thousands of images. In total, Planck’s computer data contained approximately 5,000 child-pornography images.

Planck was charged with four counts of distribution of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(B), 2252A(b)(l), and 2256; and three counts of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256. The possession counts were based on his having child pornography on his two computers and diskettes.

Planck moved to dismiss two of the possession counts on multiplicity grounds, contending he was being prosecuted three times for the same possession-of-child-pornography act. The Government responded that, although the counts arose under the same statutory provision, the device involved in each count (desktop computer, laptop computer, and diskettes), and the images in each of those devices, differed.

[*503] The district court denied Planck’s motion. In August 2005, he pleaded guilty to all seven counts.

The November 2005 Presentence Investigation Report (PSR) recommended a base offense level of 32, based on the post-Booker advisory 2003 Sentencing Guidelines. The recommended advisory Guidelines range was 121 to 151 months imprisonment. Noting the Guidelines suggested a two to three year term, the PSR instead recommended the statutory maximum of a life term, for supervised release, pursuant to Guidelines § 5D1.2(c) (term of statutory release should not be less than any statutorily required minimum). Planck did not object to that recommendation.

In December 2005, adopting the recommendations in the PSR, the district court sentenced Planck, inter alia, to 121-months imprisonment on the distribution counts and 120-months on the possession counts, to be served concurrently. The court also imposed a life term of supervised release, in accordance with § 5D1.2(c). After imposition of sentence, Planck again objected to the possession counts on multiplicity grounds; he again did not object to the supervised release.

II.

A.

Planck first contends two of the three possession counts are multiplicitious and should be dismissed. Multiplicity claims are reviewed de novo. United States v. Brechtel, 997 F.2d 1108, 1112 (5th Cir.1993). The rule against multiplicitous prosecutions stems from the Fifth Amendment’s proscription against double jeopardy. E.g., United States v. Kimbrough, 69 F.3d 723, 729 (5th Cir.1995). The rule prevents the Government from charging a single offense in more than one count of an indictment. United States v. Heath, 970 F.2d 1397, 1401 (5th Cir.1992). “The chief danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense.” United States v. Swaim, 757 F.2d 1530,1537 (5th Cir.1985).

In deciding whether an indictment is multiplicitious, we look to “whether separate and distinct prohibited acts, made punishable by law, have been committed”. United States v. Shaid, 730 F.2d 225, 231 (5th Cir.1984) (quoting Bins v. United States, 331 F.2d 390, 393 (5th Cir.1964)). To do so, we must first determine the “allowable unit of prosecution”, see United States v. Reedy, 304 F.3d 358, 365 (5th Cir.2002) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952)), which is the actus reus of the defendant, United States v. Prestenbach, 230 F.3d 780, 783 (5th Cir.2000).

The issue at hand is a matter of first impression for our court. Therefore, we look to our precedent in analogous cases to guide our analysis. Section 2252A(a)(5)(B) proscribes “knowingly possessing] any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography _” Plank contends: despite the possession of child pornography in three different types of devices, his acts still constituted only a single violation of § 2252A(a)(5)(B), because he was found in possession of the images at the same time and place.

In support, Planck cites Prestenbach. There, the defendant was convicted on four counts for possessing four altered money orders in a bottle, in violation of 18 U.S.C. § 494, which made it a crime to “[knowingly] possess ... any such false, forged, altered, or counterfeited writing”. In Prestenbach, only a single act of possession was alleged. 230 F.3d at 783.

Our court reversed the conviction, holding: where “contraband is possessed at a[*504] single place and time, there is a single act of possession and a single crime”. Id. “Keeping four altered money orders in a ... bottle is one action, and therefore one crime.” Id. at 784. Notably, however, Prestenbach also stated: had “the government proved separate acts leading to ... possession of the altered money orders, it [would be] ... a different case”. Id.

Statutes punishing the possession of firearms by felons lend similar support. Although 18 U.S.C. § 922(h) punishes the “possession]” or “recei[pt]” of “any firearm or ammunition” traveling through interstate commerce, the “firearms themselves [are not] allowable units of prosecution, unless they were received at different times or stored in separate places”. United States v. Hodges, 628 F.2d 350, 352 (5th Cir.1980) (emphasis added); see also United States v. Berry, 977 F.2d 915, 920 (5th Cir.1992) (simultaneous possession of firearms and ammunition can sustain multiple violations of 18 U.S.C. § 922 if firearms were obtained at different times or stored in separate places). Congress chose not to punish the “undifferentiated possession or receipt of multiple firearms ... more severely than the possession or receipt of a single firearm”. Hodges, 628 F.2d at 352 (emphasis added). But again, a defendant could be charged with multiple violations of the statute for receipt or possession of different firearms at different times. United States v. Bullock, 615 F.2d 1082, 1085-86 (5th Cir.1980).

“Where a defendant has a single envelope or book or magazine containing many images of minors engaging in sexual activity, the government often should charge only a single count.” Reedy, 304 F.3d at 367. Here, however, the desktop, laptop, and diskettes Planck possessed were three separate types of material or media, each capable of independently storing images of child pornography. Along that line, where a defendant has images stored in separate materials (as defined in 18 U.S.C. § 2252A), such as a computer, a book, and a magazine, the Government may charge multiple counts, each for the type of material or media possessed, as long as the prohibited images were obtained through the result of different transactions.

A contrary result would allow amassing a warehouse of child pornographic material — books, movies, computer images — with only a single count of possession as a potential punishment. As Bullock noted, when discussing the firearms statute:

[C]ould Congress have intended to deter receipt as well as possession of firearms by convicted felons and yet design the statute to only allow one punishment no matter how many separate receipts and possessions occurred? We think not. Any other determination would allow convicted felons and terrorists to establish armories where all of their weapons would be kept. The person in custody of the armory would then be subject to only a single charge of possession, although thousands of illegal and dangerous weapons were received and stockpiled at different times.

Bullock, 615 F.2d at 1086.

Recently, in United States v. Buchanan, 485 F.3d 274 (5th Cir.2007), our court reversed a multiplicitous conviction under 18 U.S.C. § 2252(a)(2), which proscribes, inter alia, the receipt of child pornography. Buchanan was convicted, following a jury trial, on four separate counts, for having accessed and saved to his computer four different child pornographic images. Id. at 277-78. Our court held the Government “bore the burden of establishing multiple counts by charging and proving separate receipts” of the contraband material; it failed to meet its burden by not “al-leg[ing] separate receipt of the four images[*505] identified”. Id. at 282. Buchanan is, of course, distinguishable; in a receipt/distribution statute, such as 18 U.S.C. § 2252(a)(2), each separate receipt of child pornography violates the statute. Id. at 279-82; cf. United States v. Gallardo, 915 F.2d 149, 151 (5th Cir.1990) (each separate use of the mail to transport or ship child pornography should constitute a separate crime).

For the possession statute in issue, however, the actus reus is the possession of child pornography; the Government need only prove the defendant possessed the contraband at a single place and time to establish a single act of possession and, therefore, a single crime. Prestenbach, 230 F.3d at 783. Through different transactions, Planck possessed child pornography in three separate places—a laptop and desktop computer and diskettes—and, therefore, committed three separate crimes. The counts are not multiplicitous.

B.

In contesting his life term of supervised release, Planck concedes he did not object to that term in district court. Therefore, we review only for plain error. Fed.R.CRIm.P. 52(b). To establish reversible plain error, a defendant must show a clear or obvious error affected his substantial rights. E.g., United States v. Castillo, 386 F.3d 632, 636 (5th Cir.2004). Even if the defendant does so, we retain discretion to correct the plain error; generally, we will do so only if it “affects the fairness, integrity, or public reputation of judicial proceedings”. Id. There is no reversible plain error.

The policy statement in Guidelines § 5D1.2 recommends a maximum term of supervised release for sex offenders who are convicted under Chapter 110 of the United States Code (Sexual Exploitation and Abuse of Children), particularly those who commit crimes “perpetrated against minors”. U.S.S.G. § 5D1.2(c) & cmt. n. 1 (2003). Read in conjunction with statutory provisions governing supervised release, district courts are authorized to impose a life term of supervised release on sex offenders, particularly those who commit crimes against minors. United States v. Allison, 447 F.3d 402, 405 (5th Cir.2006).

Planck first claims his offense does not qualify under § 5D1.2(a)(2), asserting that consuming and distributing, unlike manufacturing, child pornography is not a crime perpetrated against a minor. In that regard, he further claims: had the drafters of the Guidelines intended for all sex offenses under Chapter 110 to be encapsulated within § 5D1, they would have omitted the qualifier “perpetrated against a minor”.

Possession and distribution of child pornography are crimes perpetrated against a minor. As this court has stated previously, a child may be victimized in three distinct ways:

First, the simple fact that the images have been disseminated perpetuates the abuse initiated by the producer of the materials .... Second, the mere existence of child pornography represents an invasion of privacy of the child depicted. Both the Supreme Court and Congress have explicitly acknowledged that the child victims of child pornography are directly harmed by this despicable intrusion on the lives of the young and the innocent .... Third, the consumer of child pornography instigates the original production of child pornography by providing an economic motive for creating and distributing the materials.

United States v. Norris, 159 F.3d 926, 929-30 (5th Cir.1998) (internal citations, quotation marks, and emphasis omitted).

Under the advisory-Guidelines regime imposed by United States v. Booker, [*506] 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a district court must still consider the sentencing considerations provided in 18 U.S.C. § 3553(a). E.g., United States v. Smith, 440 F.3d 704, 706 (5th Cir.2006). In the alternative, Planck claims: even if he qualified for an upward departure, it was not warranted because his case was not outside the heartland of a typical case.

In imposing the supervised release, the district court stated it was intended to “serve as a deterrent [for the defendant] from continued elicit [sic] behavior involving sexual conduct of minors and/or the possession of child pornographic materials that would address the need to protect the public from further crimes of this defendant”. These stated reasons are consistent with the sentencing factors in § 3553(a). See 18 U.S.C. § 3553(a)(2)(B, C) (“deterrence” and “protect[ing] the public from further crimes of the defendant” as sentencing factors). Furthermore, because of the seriousness of the offense, we have previously upheld life terms of supervised release against sex offenses perpetrated against minors. See Allison, 447 F.3d at 407 (“[T]he decision to departure upward ... [is] consistent with Congress’s and the Sentencing Commission’s intention to punish child sex offenders with life terms of supervised release”.).

III.

For the foregoing reasons, the judgment is

AFFIRMED.

Concurrence

WIENER, Circuit Judge,

specially concurring:

I am comfortable with the majority’s disposition of the issue of Planck’s term of supervised release. I add this special concurrence, however, to expand on the multiplicity issue.

I agree with the majority that, in prosecutions for possession offenses, the actus reus is the defendant’s act of possession, in consequence of which a defendant who possesses multiple items of contraband at the same time and place may be convicted of only one possession offense, just as a defendant who possesses a single item of contraband may be convicted of only one offense. I also agree with the majority’s recognition of an exception to this general rule: A defendant who possesses multiple items of contraband at the same time and place, may nevertheless be convicted of multiple possession offenses if he either (1) came into possession of different items of contraband at different times or (2), as the government contends here, stored some of the items in different places.[1]

In this prosecution, the government failed to adduce any evidence or assert any facts through the factual basis, rearraignment hearing, sentencing hearing, pre-sen-tence investigation report, or indictment, that Planck acquired possession of any of the pornographic images and movies at different times. Even though such an omission could be fatal to a prosecution under different circumstances, it is not here: Given the overwhelming number of images and movies stored on the computers and diskettes in Planck’s house, it would exceed credulity to conclude that Planck acquired, or could have acquired, all the images and movies at the very same time. In this guilty-plea case, the district court did not clearly err in implicitly finding that, based on and supported by the evidence actually presented, Planck must[*507] have acquired possession of the images and movies at different times. Under the discrete facts of this case, I must concur in the majority’s conclusion that convictions on Counts 5 through 7 — the possession counts — are not multiplicitous.

I remain troubled, however, by the government’s failure to present any affirmative evidence or assert any discrete facts to support the requirement of Planck’s having acquired the images and movies at more than one time. It could not have been difficult for the government to ascertain when Planck downloaded each of the images and movies, especially in light of the government’s ability to perform the more difficult task of tracing the upload of images by Planck, a resident of Kingwood, Texas, to an online sharing community operating in Newark, New Jersey.

I am even more disturbed by the government’s and probation office’s apparent failure to recognize the law in this circuit concerning multiple possession offenses in general. Even though this case is, in the narrowest sense, one of first impression under this statute and these discrete facts, it remains a contraband possession case at its core. Yet at no time, either in the district court or on appeal, has the government or probation office acknowledged, recognized, or represented that the only way to support multiple possession charges against a defendant in Planck’s position is to allege and prove that he either acquired possession of the images and movies at different times or stored them in different places. Here, the government either failed to determine the applicable law before prosecuting Planck or simply disregarded it.

Had the facts of this case been but slightly different, the result might well have been different too. And, although the only thing at stake in this particular multiplicity issue is a $200.00 special assessment fee, it would have been a miscarriage if we had been left no choice but to reverse all but one of these convictions of an admitted child pornographer simply because the government failed either to learn the law or to present the necessary factual underpinnings. A word (actually, quite a few words) to the wise should be sufficient.

1

Although the desktop computer was found in Planck's living room, the laptop computer in his dining room, and the diskettes in his bedroom, all were stored in his house at the same time. Under these facts, it is feckless to contend that these items were stored in different places. Possession of all items within Planck’s home was storage in the same place.