Do convictions of greater and lesser-included offenses violate the Double Jeopardy Clause when the prosecution uses the same evidence to obtain both convictions, as most circuits have held, or must the defendant show that the jury could not have based each conviction on different evidence, as the Fifth Circuit has held?

QUESTION PRESENTED FOR REVIEW Petitioner Jason Lee Sarabia possessed two cell phones containing child pornography images that the Government believed he had received over a period of weeks before the phones were seized. For each phone, Sarabia was charged with receipt of child pornography and possession of the phone that contained child pornography. See 18 U.S.C. § 2252A(a)(2), (5)(B). The Government used receipt and possession of the same images to prove both counts per phone. The jury convicted Sarabia of all four counts. On appeal, the Government did not dispute that possession is the of receipt for the same image. Instead, the Government argued, and the Fifth Circuit agreed, that the convictions were not multiplicitous because the jury could have convicted Sarabia based on receipt of different images for each count— even though the Government did not argue at trial, nor was the jury instructed, that distinct evidence supported each count. The question presented is: Do convictions of greater and lesser-included offenses violate the Double Jeopardy Clause when the prosecution uses the same evidence to obtain both convictions, as most circuits have held, or must the defendant show that the jury could not have based each conviction on different evidence, as the Fifth Circuit has held? No. — In the Supreme Court of the United States JASON LEE SARABIA, Petitioner, Vv. UNITED STATES OF AMERICA PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS OF THE FIFTH CIRCUIT Petitioner, Jason Lee Sarabia asks that a writ of certiorari issue to review the opinion and judgment entered by the United States Court of Appeals for the Fifth Circuit on August 25, 2021.