United States v. Smith, No. 15-5005 (10th Cir. 2016)
Annotate this CaseDefendant Kevin Smith was convicted by jury on eight counts of distributing child pornography and one count of possessing child pornography. He was sentenced to 210 months’ imprisonment. Defendant raised two grounds for appeal: (1) that the eight counts of distribution were multiplicitous, in violation of the Fifth Amendment’s prohibition on double jeopardy; and (2) the district court violated Fed. R. Crim. P. 32(i)(3)(B) at sentencing when it adopted the presentence-report (PSR) account of his pending child-rape charge over his pro se objection without making a finding based on the preponderance of the evidence. The Tenth Circuit affirmed: Defendant did not raise the double-jeopardy issue below and he has not shown plain error; and the district court’s refusal to address a pro se objection by a defendant represented by counsel was not an abuse of discretion and, in any event, was harmless.
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