United States v. John Carpegna

FILED
NOT FOR PUBLICATION JAN 21 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-30053

Plaintiff - Appellee, D.C. No. 6:07-cr-00013-DWM

v.
MEMORANDUM *
JOHN ERIC CARPEGNA,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding

Submitted January 10, 2011 **

Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

John Eric Carpegna appeals from the 97-month sentence imposed following

his guilty-plea conviction for receipt of child pornography, in violation of 18

U.S.C. § 2252A(a)(2). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

*
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).
 Contrary to Carpegna’s contention, this Court’s remand did not require or

authorize the district court to hold a resentencing hearing; it required that the

district court hold a hearing to make a discretionary determination as to which of

the two convictions to vacate. See United States v. Carpegna, 349 F. Appx. 125,

127 (9th Cir. 2009); see also Ball v. United States, 470 U.S. 856, 864 (1985)

(“[T]he only remedy . . . is for the District Court, where the sentencing

responsibility resides, to exercise its discretion to vacate one of the underlying

convictions.”).

United States v. Hector, 577 F.3d 1099, 1103-04 (9th Cir. 2009), relied on

by Carpegna, does not require or allow a resentencing hearing. Hector merely

recognized that the district court must exercise its discretion to determine which

underlying conviction to vacate. Id. at 1103.

Finally, 18 U.S.C. § 3742(g) does not require resentencing because 18

U.S.C. § 3742(f) does not apply here. This court’s remand addressed the

lawfulness of the dual convictions, not the lawfulness of the sentence imposed for

receipt of child pornography. See Carpegna, 349 F. Appx. at 127; see also Ball,

470 U.S. at 864-65 (making clear that it is the second conviction that is unlawful).

AFFIRMED.

2 10-30053