Opinion
No. 08-30336.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed January 6, 2010.
Marcia Kay Hurd, Esquire, U.S. Assistant, Office of the U.S. Attorney, Billings, MT, for Plaintiff-Appellee.
Mathew M. Stevenson, Independent Counsel, Stevenson Law Office, Missoula, MT, for Defendant-Appellant.
Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. 9:07-cr-00060-DWM.
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
David Lee Savage appeals from his guilty-plea conviction and 60-month sentence for receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand. Savage contends the district court failed to properly exercise its discretion to determine whether to vacate his receipt conviction or possession conviction because it incorrectly found that the choice was in the hands of the government. See United States v. Davenport, 519 F.3d 940, 947 (9th Cir. 2008) (holding that the "offense of possessing child pornography is a lesser included offense of the receipt of child pornography"). We recently held in an intervening case that "the decision to vacate must lie in the discretion of the district court." United States v. Hector, 577 F.3d 1099, 1103 (9th Cir. 2009). Because the district court did not have the benefit of Hector at the time of its decision, we vacate and remand for further proceedings consistent with Hector. VACATED and REMANDED.