United States v. Harvey, No. 15-2677 (8th Cir. 2016)
Annotate this CaseDefendant appealed his convictions and his sentence for receipt of child pornography and possession of child pornography. The court concluded that the district court did not abuse its discretion when it denied defendant's motion to withdraw his nolo contendere plea where the court found no fair and just reason to grant withdrawal. However, the court concluded that defendant's two convictions violate the Double Jeopardy Clause because they arise out of the same act or transaction. Accordingly, the court affirmed in part, reversed in part, and remanded with instructions for the district court to vacate one of defendant's convictions and to resentence him.
Court Description: Bright, Author, with Gruender and Kelly, Circuit Judges] Criminal case - Criminal law and sentencing. The district court did not err in denying defendant's motion to withdraw his plea of nolo contendere as he failed to demonstrate a fair and just reason to withdraw the plea; the United States concedes that defendant's convictions for possession and receipt of child pornography rest on the same act or transaction, and the two convictions for the same conduct violate the Double Jeopardy Clause; remanded with directions to vacate one of the convictions and re-sentence defendant. Judge Gruender, concurring in the result.
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