UNITED STATES of America, Plaintiff-Appellee, v. Jerald Elmo BROBST, Defendant-Appellant, 378 F. App'x 670

MEMORANDUM Defendant Jerald Elmo Brobst (“Defendant”) was convicted after a bench trial of, inter alia, receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court sentenced him to concurrent terms of 84 months in prison for the receipt and possession counts, and fined him $15,000. On appeal, this Court concluded that Defendant’s convictions for both receipt and possession violated the Double Jeopardy Clause, and vacated the sentence with remand instructions to vacate one of the two convictions.

See United States v. Brobst, 558 F.3d 982, 1000 (9th Cir.2009) (citing United States v. Davenport, 519 F.3d 940, 947 (9th Cir.2008)). On remand, Defendant moved for a hearing on which conviction to vacate and on the proper sentence. The district court denied Defendant’s motion, dismissed the possession count, and affirmed the original sentence without a hearing. Defendant appeals, arguing that he should have been heard on which count to vacate and on the proper new sentence. We affirm.

This Court’s remand order did not require the district court to hold a hearing on which conviction to vacate or on the proper sentence. The district court, rather than a party, decided which conviction to vacate, as required by Ball v. United States, 470 U.S. 856, 864, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). The district court upheld the receipt conviction. Defendant had the opportunity to be heard regarding the proper sentence for his receipt conviction at the time of his original sentencing. Accordingly, Defendant was not deprived of due process. AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.