United States of America v. David Malik

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3404
U NITED S TATES OF A MERICA ,
Plaintiff-Appellant,
v.
D AVID M ALIK ,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 02 CR 972—Milton I. Shadur, Judge.
____________
A RGUED S EPTEMBER 9, 2004—D ECIDED S EPTEMBER 22, 2004
____________
Before E ASTERBROOK , E VANS , and S YKES , Circuit Judges.
E ASTERBROOK , Circuit Judge. An indictment charged
David Malik with receipt of child pornography, which vio-
lates 18 U.S.C. §2252A(a)(2)(A), and possession of child
pornography, which violates 18 U.S.C. §2252A(a)(5)(B). He
pleaded guilty to both charges. Receipt is the more serious
of the two offenses under the Sentencing Guidelines.
Compare U.S.S.G. §2G2.2, the provision covering receipt,
with U.S.S.G. §2G2.4, which covers possession.
When multiple counts are grouped for sentencing, U.S.S.G.
§3D1.3(a) requires the court to use whichever guideline

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2 No. 03-3404
yields the higher offense level. That is §2G2.2, which speci-
fies a base offense two levels above §2G2.4. The district
court nonetheless decided to sentence Malik under §2G2.4.
The judge wrote that the possession guideline is more
appropriate because persons who possess something must
have received it, and those who receive something necessar-
ily possess it. Thus the judge saw these offenses as cotermi-
nous (unless the defendant engages in distribution, which
Malik did not) and concluded that a higher sentence could
not be justified for aspects of the receipt crime necessarily
entailed in the possession crime. 282 F. Supp. 2d 833 (N.D.
Ill. 2003). Although the prosecutor contended that there
were ways to commit the possession offense without also
committing the receipt offense—for example, one could
create an image or find it in the trash, and in either event
come to possess it without receiving it—the district judge
deemed these possibilities incompatible with the statute’s
legislative history. The court then imposed a sentence of 30
months’ imprisonment. Had the court used §2G2.2, the
range would have been 37 to 46 months. The United States
has appealed, arguing that Malik must be sentenced within
the higher range.
According to Malik, we lack jurisdiction to entertain this
contention. This is so, he contends, because the district
judge effectively revoked his acceptance of the guilty plea to
the receipt count and imposed sentence only on the pos-
session count (which on the district court’s view is a lesser
included offense of receipt). That leaves the case without a
final decision and precludes appeal, Malik insists. Yet the
judgment states that Malik is guilty on both counts, and in
a supplemental memorandum the district judge cleared up
any ambiguity by stating directly that Malik has been
convicted on both counts as charged. The judge’s ruling
concerns the choice among sentencing guidelines, not the
validity of the convictions. If, as Malik believes, the judge
had rejected his guilty plea to the receipt count, then either

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No. 03-3404 3
a trial or an order dismissing that count should have followed.
Neither step occurred or is in prospect, however; the district
court is finished with this case, so an appeal lies under 18
U.S.C. §3742(b)(2). Finally, if the judge had indeed effec-
tively dismissed all or part of the receipt charge, then
appellate jurisdiction would be conferred by the Criminal
Appeals Act, which permits the United States to take
interlocutory appeals from full or partial dismissals. 18
U.S.C. §3731 ¶1.
The district court’s premise is that, when multiple stat-
utes apply to the same criminal conduct, sentence should be
based on whichever yields the lowest offense level. That
contradicts §3D1.3(a), which directs the court to use the
highest applicable offense level. It is common for one course of
conduct to violate multiple statutes and yield multiple con-
victions; it is common, too, for either the statutes or the
guidelines implementing them to supply different sentenc-
ing ranges. When the same acts violate multiple laws, the
prosecutor is free to choose the one with the highest sentence.
See United States v. Batchelder, 442 U.S. 114 (1979). When
the offenses overlap so completely that the charges are multi-
plicitous—as, for example, when an indictment charges one
person with robbing a bank and possessing the loot, see
United States v. Gaddis, 424 U.S. 544 (1976)—the court va-
cates the less serious of the convictions, not the more serious
one. Just so with sentencing. When one course of conduct vio-
lates multiple statutes, and the resulting convictions are
grouped under U.S.S.G. §3D1.2 for sentencing, the court
must use the guideline for the most serious of the offenses.
What is more, a decision of this court rendered after the
district court’s disposition rejects the premise that the re-
ceipt and possession offenses are substantially the same.
United States v. Myers, 355 F.3d 1040 (7th Cir. 2004), holds
that, because the receipt offense requires proof that the
defendant knew that the persons depicted were minors, see
United States v. X-Citement Video, Inc., 513 U.S. 64 (1994),

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4 No. 03-3404
while the possession offense lacks that scienter require-
ment, it is entirely appropriate to use the receipt guideline
for conduct that violates both statutes. Although Myers
concerned 18 U.S.C. §2252 rather than 18 U.S.C. §2252A,
these statutes are materially identical, and Malik sensibly
concedes that Myers scuttles the district court’s decision if
we have appellate jurisdiction.
In addition to selecting §2G2.4, the district judge stated
that he would depart downward to the range provided by
that guideline even if we should hold (as we have now done)
that §2G2.2 is the required starting point. Appellate review
of the decision whether any departure is justifiable is
plenary, see 18 U.S.C. §3742(e); United States v. Mallon,
345 F.3d 943 (7th Cir. 2003), and no departure is support-
able here. Courts may not use the departure mechanism to
undermine decisions consciously made by the Sentencing
Commission. Section 3D1.3(a), which requires use of the
higher guideline, is one such decision—and, as we held in
Myers, it is a sensible decision as applied to the possession
and receipt of child pornography.
Because Malik must be resentenced, the district court will
need to take account of United States v. Booker, 375 F.3d
508 (7th Cir. 2004), cert. granted, No. 04-104 (U.S. Aug. 2,
2004). Malik failed to make a Booker-like argument in the
district court, but he is free to develop this contention at a
new sentencing after Booker. Defendants may raise after a
remand new arguments based on statutes or opinions that
post-date the original sentencing and are not logically
foreclosed by the appellate decision. Compare Moore v.
Anderson, 222 F.3d 280 (7th Cir. 2000), with United States
v. Pollard, 56 F.3d 667 (7th Cir. 1995). Appellate mandates
may limit the issues that are open on remand, see Pearson
v. Edgar, 153 F.3d 397, 405 (7th Cir. 1998), but we impose no
such restrictions; Malik should be resentenced from scratch.
Forfeiture is significant only to the extent that, by not filing
a cross-appeal, Malik disabled himself from receiving a

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No. 03-3404 5
sentence lower than 30 months. See El Paso Natural Gas
Co. v. Neztsosie, 526 U.S. 473 (1999).
Little could be gained by resentencing Malik immediately,
while legal uncertainty prevails and there is a substantial
risk that whatever approach the district court adopts would
be disapproved within a few months by the Supreme Court.
The district court should defer resentencing Malik until
after the Supreme Court has decided Booker and then
proceed as appropriate in light of that decision.
V ACATED AND R EMANDED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-22-04

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