United States v. Bradly Nelson

FILED
NOT FOR PUBLICATION MAR 18 2010
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. 09-10133
Plaintiff - Appellee, D.C. No. 1:08-CR-00174-AWI-1
v.
MEMORANDUM *
BRADLY LEO NELSON,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted March 8, 2010
San Francisco, California
Before: HUG, REINHARDT and BYBEE, Circuit Judges.
Defendant Bradly Leo Nelson appeals his conviction and sentence for
receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court did not abuse its discretion in imposing Nelson’s federal
sentence for child pornography to run partially consecutive to his state sentence for
child molestation. The court correctly found that the state and federal convictions
were based on different harms to different victims at different times, and thus did
not result from the same course of conduct.
We also reject Nelson’s argument that the district court abused its discretion
in imposing prepubescent victim, sadistic or masochistic conduct, and vulnerable
victim sentencing enhancements. This claim is foreclosed by United States v. Holt,
510 F.3d 1007 (9th Cir. 2007) and United States v. Wright, 373 F.3d 935 (9th Cir.
2004).
Finally, the district court did not abuse its discretion in rejecting Nelson’s
prosecutorial misconduct claim, which was based on the government’s re-filing of
his federal indictment after he was sentenced for state charges that resulted from
the same investigation. Nelson has presented no evidence that there was an
agreement not to re-file the federal charges or that the government acted in bad
faith by doing so.
AFFIRMED.