NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 05 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-30204
Plaintiff - Appellee, D.C. No. 9:06-CR-00055-DWM-1
v.
MEMORANDUM*
JERALD ELMO BROBST,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted April 5, 2010**
Seattle, Washington
Before: GOODWIN, HAWKINS and N.R. SMITH, Circuit Judges.
Defendant Jerald Elmo Brobst (“Defendant”) was convicted after a bench
trial of, inter alia, receipt of child pornography in violation of 18 U.S.C. §
2252A(a)(2) and possession of child pornography in violation of 18 U.S.C. §
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2252A(a)(5)(B). The district court sentenced him to concurrent terms of 84
months in prison for the receipt and possession counts, and fined him $15,000. On
appeal, this Court concluded that Defendant’s convictions for both receipt and
possession violated the Double Jeopardy Clause, and vacated the sentence with
remand instructions to vacate one of the two convictions. See United States v.
Brobst, 558 F.3d 982, 1000 (9th Cir. 2009) (citing United States v. Davenport, 519
F.3d 940, 947 (9th Cir. 2008)). On remand, Defendant moved for a hearing on
which conviction to vacate and on the proper sentence. The district court denied
Defendant’s motion, dismissed the possession count, and affirmed the original
sentence without a hearing. Defendant appeals, arguing that he should have been
heard on which count to vacate and on the proper new sentence. We affirm.
This Court’s remand order did not require the district court to hold a hearing
on which conviction to vacate or on the proper sentence. The district court, rather
than a party, decided which conviction to vacate, as required by Ball v. United
States, 470 U.S. 856, 864 (1985). The district court upheld the receipt conviction.
Defendant had the opportunity to be heard regarding the proper sentence for his
receipt conviction at the time of his original sentencing. Accordingly, Defendant
was not deprived of due process.
AFFIRMED.
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