United States v. Vallare ( 2021 )

Case: 20-50433 Document: 00515813993 Page: 1 Date Filed: 04/08/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 8, 2021
No. 20-50433 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Elton Vallare,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:17-CR-547-1
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Elton Vallare was convicted of two counts of distribution of child
pornography, one count of receipt of child pornography, and two counts of
possession of child pornography. The district court sentenced him to a total
of 240 months of imprisonment and 10 years of supervised release.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-50433 Document: 00515813993 Page: 2 Date Filed: 04/08/2021
No. 20-50433
Vallare contends that his two sentences for possession of child
pornography on different devices—a laptop computer and an external hard
drive—are multiplicitous. He concedes that this argument is foreclosed by
United States v. Planck, 493 F.3d 501, 503-05 (5th Cir. 2007), but he seeks to
preserve the issue for further review. The Government has filed an
unopposed motion for summary affirmance in which it agrees that the issue
is foreclosed.
In Planck, 493 F.3d at 505, this court held that “[t]hrough different
transactions, Planck possessed child pornography in three separate places—
a laptop and desktop computer and diskettes—and, therefore, committed
three separate crimes,” so the counts were not multiplicitous. Thus,
Vallare’s argument is foreclosed, and summary affirmance is appropriate.
See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.
2