United States v. David Savage

FILED
NOT FOR PUBLICATION JAN 06 2010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. 08-30336
Plaintiff - Appellee, D.C. No. 9:07-cr-00060-DWM
v.
DAVID LEE SAVAGE, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
David Lee Savage appeals from his guilty-plea conviction and 60-month
sentence for receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2).
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.
*
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).
JC/Research
Savage contends the district court failed to properly exercise its discretion to
determine whether to vacate his receipt conviction or possession conviction
because it incorrectly found that the choice was in the hands of the government.
See United States v. Davenport, 519 F.3d 940, 947 (9th Cir. 2008) (holding that the
“offense of possessing child pornography is a lesser included offense of the receipt
of child pornography”). We recently held in an intervening case that “the decision
to vacate must lie in the discretion of the district court.” United States v. Hector,
577 F.3d 1099, 1103 (9th Cir. 2009). Because the district court did not have the
benefit of Hector at the time of its decision, we vacate and remand for further
proceedings consistent with Hector.
VACATED and REMANDED.
JC/Research 2 08-30336