FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10397
Plaintiff-Appellee, D.C. No.
v. 1:08-cr-00103-
MICHAEL MAIER, AWI-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted
September 10, 2010—San Francisco, California
Filed April 27, 2011
Before: Betty B. Fletcher, Richard C. Tallman, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge B. Fletcher
5443
5446 UNITED STATES v. MAIER
COUNSEL
Robert Warren Rainwater, Esquire, Eugene, Oregon, for
defendant-appellant Michael Maier.
David L. Gappa, Assistant U.S. Attorney, Fresno, California,
for plaintiff-appellee United States of America.
OPINION
B. FLETCHER, Circuit Judge:
Defendant Michael Maier appeals his sentence of 210
months and a lifetime term of supervised release for
UNITED STATES v. MAIER 5447
receipt/distribution of child pornography. We must decide,
first, whether the district court correctly relied on the factors
set forth in 18 U.S.C. § 3553(a) to guide its discretion in
choosing which of two counts to dismiss when required to do
so by the Double Jeopardy Clause; and second, whether the
district court’s sentence was procedurally or substantively
unreasonable. We have jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a), and we affirm.
I.
In March 2008, Immigration and Customs Enforcement
(“ICE”) agents received a lead from internet service provider
Yahoo! that an unknown individual had used a Yahoo!
account and Yahoo! photo-sharing program, Flickr, to upload
child pornography. Following an investigation, agents traced
the source of the uploaded files to a dormitory room at the
United States Naval Air Station at Lemoore, California. The
room was occupied by defendant Michael Maier, a Navy
police officer stationed at the base. A federal search warrant
for the room was procured and executed on March 13, 2008.
Upon entering Maier’s room, ICE agents found a laptop
computer. Agent Ulysses Solorio, a forensic computer exam-
iner, located a large volume of child pornography in an elec-
tronic folder associated with Google Hello, another photo-
sharing program.1 The agents subsequently encountered
Maier, who was not in his room when the search warrant was
executed, elsewhere on the base. After the ICE agents
informed him that he was a suspect in an ongoing federal
investigation, Maier waived his Miranda rights and agreed to
be interviewed.
1
According to ICE, Google Hello “allowed for the rapid and massive
trading of images between persons,” and soon came to be used primarily
“for illicit trading of child pornography.” Google discontinued the pro-
gram in 2008 after law enforcement officials notified the company of this
trend.
5448 UNITED STATES v. MAIER
During the interview, and in a written statement provided
to the ICE agents, Maier admitted that he was addicted to
child pornography. According to the agents, Maier — who
was twenty-six years old at the time — stated that he had been
viewing, receiving, and/or distributing child pornography
since he was approximately sixteen or seventeen years old. He
told the agents his behavior “disgusted” him but that he had
been unable to stop it. He also told the agents that he had
made anonymous reports regarding other individuals with
whom he had viewed and shared child pornography, in an
effort to feel better about his compulsive behavior.
Maier provided the agents with his computer password and
the user names and passwords for his various online accounts.
Using his laptop and this information, agents subsequently
identified seventy-four additional people involved in child
pornography, with whom Maier had communicated during a
five-month period, from November 2007 to March 2008. As
a result of this investigation, federal agents discovered that
Maier sent 4,686 images and received 4,227 others during this
period.2
A federal grand jury indicted Maier on two counts. Count
One charged him with receipt or distribution of child pornog-
raphy, in violation of 18 U.S.C. § 2252(a)(2). Count Two
charged him with possession of the same, in violation of 18
U.S.C. § 2252(a)(4)(B). In June 2009, Maier pleaded guilty to
Count One without a plea agreement. On September 22, 2009,
the district court held a sentencing hearing. At the start of the
hearing, Maier additionally pleaded guilty to Count Two,
again without an agreement with the Government.
2
During the sentencing hearing, the district court noted that these fig-
ures included some duplicate images and some adult-only pornography.
Nevertheless, based on evidence presented during Maier’s sentencing
hearing, the court “specifically [found] that there were well over . . . thou-
sands” of images of child pornography sent or received by Maier.
UNITED STATES v. MAIER 5449
Following Maier’s plea of guilty to Count Two, the ICE
case agent assigned to the investigation, Senior Special Agent
Mike Prado, testified at length regarding Maier’s illegal activ-
ities. Based on his experiences in more than two hundred
child pornography investigations, Prado testified that the
Maier case had yielded “some of the youngest images that I
have seen at all in my investigations,” including pictures of
infants and children between one and three years of age.
Prado further stated: “Mr. Maier falls on the far end of the
spectrum as far as the heinous images, the sexually violent
images that he had[, t]he extremely vulnerable and young age
of the victims . . . as well as . . . how prolific of a distributor
he was at the time of his arrest.” Maier then made a statement
to the district court about his behavior and his remorse.
The district court proceeded to calculate Maier’s total
offense level. Pursuant to the U.S. Sentencing Guidelines, the
base offense level for receipt or distribution of child pornog-
raphy is 22. See U.S.S.G. § 2G2.2(a)(2). A two-level increase
was warranted because the materials involved prepubescent
minors. See id. § 2G2.2(b)(2). Observing that “clearly there
were constant exchanges of images, excessive bartering back
and forth, negotiations . . . [and] a reluctance to, by Mr.
Maier, to send images to another person until he got some-
thing of worthwhile value [in return],” the district court also
found that an additional five-level increase was warranted for
“[d]istribution for the receipt, or expectation of receipt, of a
thing of value.” See id. § 2G2.2(b)(3)(B). Since many of the
images Maier possessed depicted bondage or sexual abuse of
prepubescent children, a four-level increase for sadistic or
masochistic content or other depictions of violence was also
warranted. See id. § 2G2.2(b)(4). Maier’s use of a computer
warranted a two-level increase, see id. § 2G2.2(b)(6), and
involved “thousands” of images, warranting a further five-
level increase. See id. § 2G2.2(b)(7)(D). The district court
found that a three-level reduction was justified on account of
Maier’s acceptance of responsibility. See id. § 3E1.1(a)-(b).
Maier’s total offense level, therefore, was 37. Given that
5450 UNITED STATES v. MAIER
Maier had no criminal history, he was assigned a criminal his-
tory category of I. Accordingly, the advisory sentencing range
was 210 months to 262 months imprisonment; but because the
statutory maximum under Count One was 240 months,
Maier’s effective Guidelines range was 210 to 240 months
imprisonment.
The district court noted that, pursuant to Ninth Circuit pre-
cedent prohibiting conviction and sentencing for both posses-
sion and receipt/distribution of child pornography when the
charges are predicated on the same set of images, see gener-
ally United States v. Davenport, 519 F.3d 940 (9th Cir. 2008),
it had to exercise its discretion to determine whether Maier
should be sentenced under Count One or Count Two, see gen-
erally United States v. Hector, 577 F.3d 1099 (9th Cir. 2009).
The district court reasoned:
I find that, given the number of images involved
here, the number of victims, the extensive distribu-
tion back and forth, the number of individuals that
Mr. Maier has exchanged images with, that clearly
this is a sentence under Count One. Receipt and dis-
tribution is far more appropriate. In fact, it is the
only appropriate sentence under the facts of this
case, as opposed to mere possession, which would
clearly understate Mr. Maier’s involvement and
criminal activity in this case.
Accordingly, the district court determined it would vacate
Maier’s conviction for possession of child pornography under
Count Two and instead impose the judgment and sentence
under Count One for receipt or distribution of child pornogra-
phy.
The court next considered the factors set out in 18 U.S.C.
§ 3553(a) to determine what would constitute a reasonable
sentence in Maier’s case. See United States v. Booker, 543
U.S. 220, 245 (2005). It noted that “the public through Con-
UNITED STATES v. MAIER 5451
gress” has expressed its view that Maier’s offense is “very
serious.” The court maintained that “[i]t is absolutely essen-
tial, because of the proliferation of this type of crime, that a
sentence be imposed that promotes respect for the law and
provides just punishment for the offense. . . . [and] to protect
the public from further crimes of the defendant.”
The district court explained that the circumstances relevant
to Maier’s offense included the number of images he had
exchanged, the age and vulnerability of the victims in those
images, the “types of images seen,” and Maier’s electronic
conversations, in which he had repeatedly expressed a desire
to have a daughter to molest. The district court conceded that
these conversations “may be fantasy,” but observed that “as
[Maier’s] conversations progressed, [they] appear[ed] to be
more bizarre [and] more violent.”
The district court also considered various factors weighing
in Maier’s favor, including the fact that he had suffered physi-
cal and emotional abuse as a child and “obviously [has] very
serious mental issues regarding his self-esteem, [and] depres-
sion.” The district court noted Maier’s young age, lack of
prior criminal history, family ties and support, intelligence
and resourcefulness, military service, and cooperation with
government officials during their investigation.
Taking the foregoing factors into account, the district court
imposed a prison sentence of 210 months, at the low end of
the Guidelines range. In addition, the court imposed a lifetime
term of supervised release, expressing concern that, without
treatment and supervision, Maier would pose a risk to the
public.
II.
A.
[1] “The Fifth Amendment’s prohibition on double jeop-
ardy protects against being punished twice for a single crimi-
5452 UNITED STATES v. MAIER
nal offense.” Davenport, 519 F.3d at 943 (citing U.S. Const.
amend. V; Brown v. Ohio, 432 U.S. 161, 165 (1977)). In Dav-
enport, we held that the Double Jeopardy Clause prohibits
conviction and sentencing for both possession and
receipt/distribution of child pornography when the charges are
predicated on the same set of images. See id. at 947-48.
There is no dispute that, in light of Davenport, the district
court could not enter a judgment of conviction and sentence
Maier under both of the charged crimes, and that the district
court therefore had to dismiss one of the two counts. On
appeal, Maier contends that the district court should have sen-
tenced him under the possession count and dismissed the
receipt/distribution count, rather than the reverse.
[2] In Hector, we held that when a defendant is convicted
of both possession and receipt/distribution of child pornogra-
phy, and the charges are predicated on the same set of images,
the district court must exercise its discretion to determine
which one of the two counts to dismiss. See 577 F.3d at 1103-
04. Because this decision is a matter of discretion, see id., we
review the district court’s choice for an abuse of that discre-
tion.
Hector makes clear that district courts must exercise their
discretion in choosing which count of conviction to vacate
even “where a defendant’s conduct violated two statutes and
the prosecutor decided the case warranted the more severe
charge.” 577 F.3d at 1103-04 (citing Ball v. United States,
470 U.S. 856, 866 (1985); United States v. Schales, 546 F.3d
965, 977-81 (9th Cir. 2008)). As we have recognized, how-
ever, a district court “should” exercise its discretion to vacate
the lesser-included offense, absent unusual circumstances and
compelling reasons to vacate the greater offense. See United
States v. Jose, 425 F.3d 1237, 1247 (9th Cir. 2005) (“Thus,
when a jury convicts on both the greater and the lesser
included offenses, absent a clear indication by Congress that
it intended to allow punishment for both offenses, the district
UNITED STATES v. MAIER 5453
court should enter a final judgment of conviction on the
greater offense and vacate the conviction on the lesser
offense.” (citing Rutledge v. United States, 517 U.S. 292, 306
(1996))); see also, e.g., United States v. Batchelder, 442 U.S.
114, 125 (1979) (“Just as a defendant has no constitutional
right to elect which of two applicable federal statutes shall be
the basis of his indictment and prosecution neither is he enti-
tled to choose the penalty scheme under which he will be sen-
tenced.”). Such a rule safeguards against cases where a
defendant charged with both possession and
receipt/distribution of child pornography pleads guilty to both
offenses with the hope that he will be sentenced under the
lesser crime.
[3] The choice of which count to vacate is fundamentally
a sentencing decision. A district court evaluating a case like
Maier’s must choose whether the defendant’s transgressions
warrant a lesser penalty — a shorter statutory term of impris-
onment for possession of child pornography — or a greater
penalty — a longer statutory term for receipt/distribution.
Under Booker and its progeny, district courts making such
determinations must evaluate the factors set forth in 18 U.S.C.
§ 3553(a), which lists the policies Congress has established to
guide courts in federal sentencing. See, e.g., Rita v. United
States, 551 U.S. 338, 347-48 (2007). We therefore hold that
a district court’s exercise of its discretion under Hector is to
be guided by the § 3553(a) factors. An analysis rooted in
these factors may also lead to the conclusion that the greater
offense should be vacated. Where, as here, the defendant is
factually guilty of both possession and receipt/distribution of
child pornography, the district court must evaluate these fac-
tors, not the mere fact of the offense, in determining which
count to vacate as well as what constitutes a reasonable sen-
tence.
B.
[4] In this case, the district court evaluated the following
factors in choosing to vacate the possession count and to sen-
5454 UNITED STATES v. MAIER
tence Maier under the receipt/distribution count: (1) the num-
ber of images Maier had distributed and received; (2) the
number of victims depicted in those images; and (3) the num-
ber of individuals with whom Maier had exchanged images.
Having thus considered the “nature and circumstances” of
Maier’s offenses, the district court concluded that sentencing
Maier for “mere possession” would “clearly understate . . .
[the] criminal activity in this case.” See 18 U.S.C.
§ 3553(a)(1). The district court emphasized that “[i]t is abso-
lutely essential, because of the proliferation of this type of
crime, that a sentence be imposed that promotes respect for
the law and provides just punishment for the offense.” These
statements show an acknowledgment of the need for a sen-
tence “to reflect the seriousness of the offense” and “provide
just punishment” for it. 18 U.S.C. § 3553(a)(2)(A). They also
evidence the court’s understanding of the need “to afford ade-
quate deterrence to criminal conduct.” Id. § 3553(a)(2)(B).
[5] The district court further noted that “unless and until
Mr. Maier receives treatment, he is likely to re-offend. . . . It’s
obviously a concern to me [to hear] of his discussions,
whether they’re fantasy or not, of wanting to have children
and if he had daughters, to sexually abuse them.” For these
reasons, the district court indicated that it would “recommend
in this case that Mr. Maier take advantage of any in-custody
programs that might assist him in addressing essentially what
I’m going to determine to be his addiction to child pornogra-
phy.” Thus, the court’s reasoning reflects the need “to protect
the public from further crimes of the defendant,” 18 U.S.C.
§ 3553(a)(2)(C), and “to provide the defendant with needed
. . . correctional treatment in the most effective manner,” id.
§ 3553(a)(2)(D).
[6] In choosing which count to vacate, the district court
clearly evaluated the totality of the circumstances of Maier’s
case under Hector along with the § 3553(a) factors. Because
the district court vacated the lesser-included offense and there
were no compelling reasons to do otherwise, the district court
UNITED STATES v. MAIER 5455
did not abuse its discretion. Accordingly, we affirm its deci-
sion to vacate Count Two and to sentence Maier under Count
One.
III.
Maier also contends that his sentence is procedurally and
substantively unreasonable. Procedurally, Maier maintains,
the district court erred by failing to explain why it did not
depart downward from the Guidelines range after finding var-
ious mitigating factors. Substantively, Maier argues, these
mitigating factors demand a downward departure from the
Guidelines.
In evaluating the procedural reasonableness of a sentence,
we assess whether the district court explained the sentence
“sufficiently to permit meaningful appellate review.” United
States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
Before concluding that a sentence is substantively reasonable,
we must consider the totality of the circumstances. Id. at 993
(citing Gall v. United States, 552 U.S. 38, 49-50 (2007)). Our
circuit does not attach a presumption of reasonableness to a
sentence merely because it falls within the Guidelines range.
Id. at 994. We review the substantive reasonableness of a sen-
tence under a “deferential abuse-of-discretion standard.” Gall,
552 U.S. at 52; Carty, 520 F.3d at 993 (“The abuse of discre-
tion standard applies to all sentencing decisions, whether the
sentence is inside the Guidelines range or outside of it.”).
“[W]e may reverse if, upon reviewing the record, we have a
definite and firm conviction that the district court committed
a clear error of judgment in the conclusion it reached upon
weighing the relevant factors.” United States v. Amezcua-
Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009).
[7] As discussed, the district court carefully and thor-
oughly explained the bases for its sentence. The court
observed that, were it not for the mitigating factors presented,
“Mr. Maier would come perilously close to the [statutory]
5456 UNITED STATES v. MAIER
maximum of [240 months.]” It noted that “there are mitigat-
ing factors that I do have to take into consideration and I will
take into consideration.” The court also observed that Maier’s
case shared certain characteristics with those of other child
pornography defendants: “no record, [the defendant is] very
young . . . [and is a] productive member[ ] of society.” The
district court’s observation that Maier’s mitigating factors are
shared by many child pornography defendants was a suffi-
cient explanation for why it believed a below-Guidelines sen-
tence was unwarranted. See, e.g., United States v. Overton,
573 F.3d 679, 699-700 (9th Cir. 2009) (“[Defendant’s] argu-
ment for a low-end sentence, which was primarily based on
his alleged good character, was straightforward and uncompli-
cated. Thus, a thorough explanation by the court was not
required.”). The district court was required to do no more than
sketch its reasons for choosing not to depart downward. See
Rita, 551 U.S. at 358-59; Carty, 520 F.3d at 995. The district
court exceeded this obligation. Accordingly, Maier’s sentence
is not procedurally unreasonable.
[8] Maier’s sentence is also substantively reasonable. After
observing that many child pornography defendants presented
similar mitigating factors, the district court concluded that the
specific circumstances of Maier’s offense outweighed these
factors in this case. These circumstances include: (1) the
extremely large number of images Maier distributed and
received; (2) the fact that some of the images were sadistic
and violent, beyond the violence of sexual abuse itself; (3) the
fact that many of the images depicted very young children and
infants, including one image depicting a newborn baby who
still had part of its umbilical cord attached; (4) deference to
Congress’s policy conclusion that receipt or distribution of
child pornography is an extremely serious offense that merits
severe punishment; (5) Maier’s expression of his desire to
have a daughter to molest, regardless of whether this desire
had an element of fantasy; and (6) other comments Maier
made in online conversations in which he expressed a desire
to abuse children. In view of these facts, the district court did
UNITED STATES v. MAIER 5457
not commit an error of judgment in concluding that Maier’s
case did not warrant a downward departure.
Nor did the sentencing enhancements Maier received over-
state the seriousness of his offense. Consider two examples:
First, the enhancement for materials involving prepubescent
minors references children who have not attained twelve years
of age. See U.S.S.G. § 2G2.2(b)(2). According to Agent
Prado’s testimony, many of the images Maier sent and
received involved much younger children, including infants
and toddlers still in diapers. Second, § 2G2.2(b)(7)(D) indi-
cates a five-level increase is warranted when the offense
involves “600 or more images”; the district court found that
Maier’s activities involved “thousands” of pictures. These
facts indicate that Maier’s case is not the mine-run child por-
nography case. Put differently, the sentencing enhancements
call for increased punishment for conduct that is much less
horrific than Maier’s.
In sum, the district court carefully considered the totality of
the circumstances in determining Maier’s sentence, and the
sentence it imposed was not substantively unreasonable.
IV.
We hold that, where a district court must exercise its dis-
cretion in deciding which count to vacate under Hector, it
must be guided by the factors set forth in 18 U.S.C. § 3553(a).
As the district court carefully and correctly considered these
factors both in determining which count to vacate and in sen-
tencing Maier, and because the sentence imposed is neither
procedurally nor substantively unreasonable, we AFFIRM.