FILED
NOT FOR PUBLICATION APR 24 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10639
Plaintiff - Appellee, D.C. No. 2:11-cr-00349-GMN
v.
MEMORANDUM*
STEVEN BYINGTON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Submitted April 22, 2015**
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Steven Byington appeals from the district court’s judgment and challenges
his jury-trial convictions and 168-month sentence for receipt of child pornography,
in violation of 18 U.S.C. § 2552A(a)(2) and (b); and possession of child
pornography, in violation of 18 U.S.C. § 2552A(a)(5)(B). We have jurisdiction
*
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).
under 28 U.S.C. § 1291. We affirm Byington’s sentence, but vacate the judgment
and remand with instructions.
Byington contends that the court procedurally erred by failing to explain
why it sentenced Byington on the receipt conviction and by failing to clearly
vacate the possession count. He also argues that his sentence is substantively
unreasonable.
As the government concedes, Byington’s convictions for both receipt of
child pornography and possession of child pornography based on the same conduct
violate the prohibition against double jeopardy. See United States v. Davenport,
519 F.3d 940, 947 (9th Cir. 2008). Thus, the possession count must be vacated.
However, we decline Byington’s invitation to vacate his sentence. Contrary to
Byington’s contention, the record makes clear why the court chose to sentence him
on the receipt count. The court adopted the Guidelines range that corresponded to
the receipt count and, based on its evaluation of the 18 U.S.C. § 3553(a) sentencing
factors, concluded that a sentence within that range was appropriate. It expressly
stated that a sentence below that range was “completely out of the question.” This
explanation is sufficient. See United States v. Carty, 520 F.3d 984, 992 (9th Cir.
2008) (en banc). Moreover, Byington’s low-end sentence is not substantively
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unreasonable in light of the section 3553(a) factors and the totality of the
circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007).
Accordingly, we affirm Byington’s sentence, but remand with instructions to
the district court to vacate the possession count, allowing for that count to be
reinstated without prejudice if Byington’s receipt conviction should be overturned
on direct or collateral review. See Davenport, 519 F.3d at 948.
AFFIRMED in part; VACATED and REMANDED with instructions.
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