Penford Corporation v. Natl. Union Fire Insurance Co.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3339
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Aaron Stock, *
* [UNPUBLISHED]
Defendant-Appellant. *
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Submitted: October 17, 2011
Filed: November 10, 2011
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Before MURPHY, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
Aaron Stock pled guilty to two counts of possessing child pornography. After
his guilty plea was accepted but before sentencing, he filed a motion to merge the two
counts. He argued that the separate charges would punish him twice for the same
conduct because they were both based on his possession of child pornography at the

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same time and place. The district court denied his motion and sentenced him to 1351
months of imprisonment. Stock appeals, arguing that the counts of conviction should
have been merged. We affirm.
Stock had downloaded pornographic images of children using a laptop
computer, peer to peer software, and the internet. He was charged in a four count
indictment with one count of receipt of child pornography in violation of 18 U.S.C.
§§ 2252A(a)(2)(A), 2252A(b)(1), and three counts of possession of child
pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2). He pled
guilty under a plea agreement to two counts of possession of child pornography. One
was based on his possession of images stored on a laptop, and the other was based on
his possession of images on an external hard drive. In exchange for his guilty pleas,
the government agreed to dismiss the other two counts.
After the district court accepted Stock's guilty pleas, he filed a motion to merge
the counts to which he had pled. He argued that if judgment were entered on both
counts, he would be punished twice for the same criminal conduct in violation of the
double jeopardy clause because both counts charged possession of child pornography
at the same time and place. The district court ruled that Stock had waived his right
to challenge the indictment because he had pled guilty to the two charges and his
guilty pleas had been accepted by the court. It concluded that Stock's admitted
conduct of possessing child pornography on two separate devices could be charged
as separate crimes and sentenced him to 135 months. Stock appeals, arguing that the
charges to which he pled should have been regarded as a single offense.
We conclude that by pleading guilty, Stock waived his merger argument. Our
cases indicate that "[a] valid guilty plea is an admission of guilt that waives all non-
The Honorable Linda R. Reade, Chief Judge, United States District Court for1
the Northern District of Iowa.
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jurisdictional defects and defenses." United States v. Limley, 510 F.3d 825, 827 (8th
Cir. 2007). Stock nevertheless contends that he did not waive his merger argument
because his challenge is based on an alleged double jeopardy violation. Menna v.
New York, 423 U.S. 61, 62 (1975) (per curiam). We have previously noted the
limited reach of the case on which Stock relies because as later explained, "a guilty
plea does foreclose a double jeopardy attack on a conviction unless, as in Menna, 'on
the face of the record the court had no power to enter the conviction or impose the
sentence.'" United States v. Vaughan, 13 F.3d 1186, 1188 (8th Cir. 1994) (quoting
United States v. Broce, 488 U.S. 563, 569 (1989)). In Broce, the Supreme Court
made clear that by pleading guilty "to two counts with facial allegations of distinct
offenses" a defendant concedes "that he has committed two separate crimes," and in
that situation there was no double jeopardy violation on the face of the record. Broce,
488 U.S. at 570, 576.
By pleading guilty to two counts of possession of child pornography, Stock
admitted that he had committed two separate crimes. He has therefore waived his
double jeopardy challenge. We are foreclosed from reviewing Stock's claims since
"waived claims are unreviewable on appeal." United States v. Booker, 576 F.3d 506,
511 (8th Cir. 2009). We need not conduct any further review. Accordingly, we
affirm the judgment of the district court.
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