Sentencing for a possession of child pornography conviction; 18 USC § 2252A(a)(5)(B); Mandatory statutory minimum 10-year sentence under § 2252A(b)(2) based on a prior conviction; Failure to charge the prior conviction in the indictment & submit the fact of it to the jury; Almendarez-Torres v United States; Erlinger v United States; Whether the indictment was constitutionally defective; Probation officer’s testimony about defendant’s honesty; Harmless error; Procedural & substantive reasonableness

The court affirmed defendant-Florence’s 120-month sentence and lifetime term of supervised release for possessing child pornography, holding that under Almendarez-Torres, it was not error for the district court, rather than the jury, to determine whether he had a prior conviction. He stipulated pretrial to a prior child pornography possession conviction and that he was on supervised release at the time of the present offense. The district court ruled that based on his prior conviction, he was subject to the statutory mandatory-minimum 10-year sentence under § 2252A(b)(2) and sentenced him accordingly. Florence first argued on appeal that his conviction should be overturned because his prior conviction was not included in the indictment and that it was for the jury, not the district court, to determine the fact of the prior conviction beyond a reasonable doubt. The court noted that the “Supreme Court has long held that the Fifth and Sixth Amendments require that each element of a crime be set forth in an indictment and proved to a jury beyond a reasonable doubt.” But in Almendarez-Torres, the Supreme Court announced a narrow exception to this general rule, “‘permitt[ing] a judge to undertake the job of finding the fact of a prior conviction.’” The court held that “Erlinger did not overrule Almendarez-Torres,” and that this case fell within the exception. It noted that “Florence stipulated to the fact of his prior conviction. The district court therefore did not violate [his] constitutional rights by finding the fact of Florence’s prior conviction and applying the mandatory-minimum sentence under” § 2252A(b)(2). The court held that Florence’s argument the indictment was constitutionally defective also failed. The indictment “alleged all the elements of the offense for which Florence was charged and convicted.” It also concluded that any error in the admission of his probation officer’s opinion on Florence’s honesty was harmless in view of the “overwhelming evidence that Florence knowingly possessed the cell phone with the knowledge that it contained child pornography.” It also rejected his challenge to the imposition of lifetime supervised release, holding that it was procedurally and substantively reasonable. It noted that the supervised release term was within the Guidelines and found that the district court “did not plainly err in its explanation” of its reasoning.