Understanding Waiver of Appellate Rights in Child Pornography Cases

United States v. Miller, 20-3316

“Whether a valid waiver of appellate rights occurred is a question of law” this court reviews de novo. United States v. Sisco, 576 F.3d 791, 795 (8th Cir. 2009). As part of the plea, Miller “knowingly and expressly” waived “any and all rights to appeal” his “conviction and sentence,” except for a claim of ineffective assistance of counsel.

In a post-judgment Memorandum and Order, the court clarified that it was imposing the “$50,000 AVAA (18 U.S.C.§ 2259A) assessment intentionally (a) to provide each of the five children with $5,000 each (to the extent possible) and (b) the balance to [be] paid into the fund for the benefit of other children.” “A monetary penalty under the AVAA is separate and distinct from restitution.” United States v. Madrid, 978 F.3d 201, 205 (5th Cir. 2020).

Titus J. Miller was convicted of five counts of producing child pornography, in violation of 18 U.S.C. § 2251(a).  The district court sentenced him to five consecutive 20-year prison terms and a lifetime of supervised release.

Miller asserts the court procedurally erred in imposing consecutive sentences. The government contends Miller waived the right to appeal his sentence in his plea agreement. “Whether a valid waiver of appellate rights occurred is a question of law” this court reviews de novo. United States v. Sisco, 576 F.3d 791, 795 (8th Cir. 2009).

As part of the plea, Miller “knowingly and expressly” waived “any and all rights to appeal” his “conviction and sentence,” except for a claim of ineffective assistance of counsel.

Miller argues the district court illegally imposed a $50,000 assessment under the AVAA. Because there was and continues to be confusion about the $50,000 assessment, this court reverses and remands for clarification.

At sentencing, the court imposed a $50,000 AVAA assessment, indicating that the amount was based on $5,000 per victim. In a post-judgment Memorandum and Order, the court clarified that it was imposing the “$50,000 AVAA (18 U.S.C.§ 2259A) assessment intentionally (a) to provide each of the five children with $5,000 each (to the extent possible) and (b) the balance to [be] paid into the fund for the benefit of other children.”

“A monetary penalty under the AVAA is separate and distinct from restitution.” United States v. Madrid, 978 F.3d 201, 205 (5th Cir. 2020).

The government argues that the Order’s phrase “to the extent possible” shows that the court was aware that the “victim families would have to go through the procedure set forth in the AVAA, including the Child Pornography Victim Reserve, to obtain monetary assistance from the Reserve.” This is not clear from the Order.

This case is reversed and remanded to the district court to enter an amended judgment.