UNITED STATES of America, Appellee, v. Joseph BOWMAN, aka Joseph M. Bowman, Defendant-Appellant, 523 F. App'x 767

SUMMARY ORDER Defendant-appellant Joseph Bowman appeals from the district court’s sentence of 276 months of incarceration for his crimes associated with his transportation, receipt, and possession of child pornography. We assume the parties’ familiarity with the underlying facts, the procedural history of the ease, and the issues on appeal. 1. Bowman argues that his sentence is substantively unreasonable. This Court will “set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.” United States v.

Cavera, 550 F.3d 180, 189 (2d Cir.2008) (quotation omitted and emphasis removed). The sentence must be “shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir.2009). Bowman contends that his sentence is substantively unreasonable because the Guidelines

Section 2G2.2 enhancements inflated his sentence to a shocking extent. He relies heavily upon United States v. Dorvee, 616 F.3d 174 (2d Cir.2010), in which a 240-month sentence for one count of distribution of child pornography was found substantively unreasonable. The Dorvee court attacked as “irrational[ ]”

Section 2G2.2 sentencing enhancements that “routinely result in Guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill cases.” Id. at 186-87. The enhancements increased Bowman’s sentence by more than half over the statutory maximum for his underlying crimes. Bowman's reliance on Don'ee is misplaced. First, Bowman had actually assaulted his daughter, resulting in a five-level enhancement that is hardly controversial, and that was not a factor in Dor-vee. Second, the procedural errors involved in Dorvee are not present here.

Third (and most importantly) the sentence in Dorvee was at the maximum end of the Guidelines range. Id. at 184-85. Here, the court specifically considered the relevant

Section 3553 factors, as well as Dor-vee `s critique of

Section 2G2.2, and granted a departure of seven years below the Guidelines maximum. Under these circumstances, there can be little doubt that the resulting sentence was "located within the range of permissible decisions," and was not substantively unreasonable. See Cavera, 550 F.3d at 189 (quotation omitted). 2. Bowman received consecutive sentences for possession of child pornography under

Section 2252A(a)(5)(

B) and for receipt of child pornography under

Section 2252A(a)(2). He argues this constituted double jeopardy because it is impossible to receive pornography without also possessing it. "When one offense is entirely subsumed into the other, it is the “same offense” for double jeopardy purposes. Ball v. United States, 470 U.S. 856, 861-64, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985) (statutes directed at receipt and possession of a firearm implicate double jeopardy, since proof of receipt necessarily includes proof of possession). A valid guilty plea constitutes a waiver of any double jeopardy claims. United States v.

Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). A small exception to that rule arises when charges are facially duplicative of one another. Id. at 575, 109 S.Ct. 757. The key question therefore is whether the receipt and possession counts were duplicative at the time that Bowman entered his plea. They were not. During the hearing on Bowman’s change of plea, the government drew the distinction that the possession files were “exclusive of the two [that were] previously described as being received via Limewire.” Hr’g Tr. at 19, ECF No. 50.

Both Bowman and his attorney agreed with the government’s description. His argument was therefore waived. Moreover, Bowman failed to present this argument below when he pled guilty. While “plain error that affects substantial rights may be considered even though it was not brought to the [lower] court’s attention,” Fed.R.Crim.P. 52(b), there was none here. There is no double jeopardy problem where the receipt and possession counts of a conviction were based upon different files. See United States v.

Irving, 554 F.3d 64, 79 (2d Cir.2009) (“If the jury’s verdicts on [receipt] and [possession] were based on different images, there was no double jeopardy violation in the entry of judgment on both counts.”). We have considered all of Bowman’s remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.