                                                                            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                            NOT FOR PUBLICATION                              APR 24 2015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




                                          2                                      13-10639
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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