                                                                           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                             NOT FOR PUBLICATION                            JAN 06 2010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
