Yard analogizes his situation to that presented in Miller, 527 F.3d at 58, in which
we held that possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B), is a lesser-included offense of receipt of child pornography, in
violation of 18 U.S.C. § 2252A(a)(2), so entry of judgments of conviction under both
statutes, based on the same images, is plain error. See also id. at 71 (“[A]s a general
matter, possession of a contraband item is a lesser-included offense of receipt of the
item.”). Miller is unhelpful to Yard. While one who knowingly receives an image
necessarily also knowingly possesses that image, it does not follow that one who
distributes an image always continues also to possess that image even after distributing it.
Moreover, whereas possession and receipt of child pornography are “directed to similar,
rather than separate, evils,” id. at 72 (internal quotation marks omitted) – that is, the
victimization of a child by a defendant’s acceptance and retention into his collection of a
record of that victimization – the distribution offense is directed to the separate evil of
sharing that image with another individual, thereby adding to the victimization of the
child by enabling another individual to possess the same image. See also United States v.
Woerner, 709 F.3d 527, 539 (5th Cir. 2013) (“[P]ossession of child pornography is not
the lesser-included offense of distribution of child pornography . . . .”).
Yard’s citation to United States v. Benjamin, 711 F.3d 371, 377-81 (3d Cir. 2013),
in which we held that unlawful possession of a firearm by a previously-convicted felon is
a “continuing offense,” is likewise unavailing. “Because the felon-in-possession crime is
continuing, charging and punishing a defendant twice for the same firearm requires an
interruption in continuity of possession.” Id. at 378. It may follow that it would have