Before RIPPLE, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. For nearly a decade, John Gries and James McCullars were active participants in a private online chat room frequented by pedophiles sharing large volumes of child pornography. They were indicted for conspiracy to distribute child pornography, conspiracy to sexually exploit a child, and engaging in a child-exploitation enterprise. Other users of the chat room cooperated with investigators, pleaded guilty, and received sentencing consideration. The charges against Gries and McCullars proceeded to trial; several cooperators testified against them.
To convict Gries and McCullars of the enterprise offense, the government had to prove that they committed three or more crimes against children “in concert” with three or more persons. 18 U.S.C. § 2252A(g)(2). The jury found them guilty on all charges.
At sentencing the parties and the judge overlooked an important point: The conspiracy counts are lesser-included offenses of the enterprise count. Instead of merging those convictions with the enterprise conviction and imposing sentence on the greater offense alone, the judge imposed concurrent sentences on all three convictions. That error violates the Double Jeopardy Clause. Rutledge v. United States, 517 U.S. 292, 307 (1996).
We reverse and remand with instructions to vacate the sentences on the conspiracy counts and enter new judgments accordingly . . . .
Randall Parr is a criminal defense attorney in Indianapolis and has practiced since 1981.