Criminal – Double jeopardy – Child pornography

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Where a defendant was convicted of receipt and possession of child pornography charges, he must be resentenced because possession of child pornography is a lesser included offense of receiving child pornography.

“… [Defendant Francisco Xavier Ortiz-Colón] was charged and convicted of nine counts of production of child pornography in violation of 18 U.S.C. §2251(a), eight counts of coercion and enticement of a minor in violation of 18 U.S.C. §2422(b)(2), one count of receipt of child pornography in violation of 18 U.S.C. §2252A(a)(2), and one count of possession of child pornography in violation of 18 U.S.C. §2252A(a)(5)(B). He asserts two separate double jeopardy violations: first, that possession of child pornography is a lesser included offense of receiving child pornography and second, that because the production of child pornography served as a necessary element to convict him of coercing and enticing a minor, the former was a lesser included offense of the latter. For reasons that we will soon provide the reader, we agree with Ortiz’s first constitutional contention and reject his second. …

“Ortiz first argues that his separate convictions for the possession and receipt of child pornography violate the Double Jeopardy Clause because possession is a lesser included offense of receipt. Ortiz’s claim has logical fortitude and persuasive support from our sister circuits who have previously pondered this question, including under plain error review. …

“As a result, we adopt ‘the most salubrious course’ and remand to the district court to vacate Ortiz’s conviction and sentence, including the $100 special monetary assessment, for either count twelve or count thirteen. … Because Ortiz was sentenced to 360 months’ imprisonment on the remaining seventeen counts, this remedy would likely only require a monetary adjustment on remand for the district court to enter judgment consistent with this opinion. …

“For the reasons elucidated above, we reject all of Ortiz’s claims of error, except for his double jeopardy claim pertaining to counts twelve and thirteen.

“Affirmed in part and remanded for further proceedings consistent with this opinion.”

United States v. Ortiz-Colón (Lawyers Weekly No. 01-095-26) (58 pages) (Thompson, J.) Appealed from the U.S. District Court for the District of Puerto Rico (Docket No. 23-1504) (May 6, 2026).

Click here to read the full text of the opinion.