                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 23 2011

                                                                        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. 10-30258

               Plaintiff - Appellee,             D.C. No. 4:09-cr-00131-BLW

  v.
                                                 MEMORANDUM *
PONY LEO JACKSON,

               Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                     B. Lynn Winmill, Chief Judge, Presiding

                              Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       Pony Leo Jackson appeals from the 120-month sentence imposed following

his guilty-plea conviction for possession of sexually explicit images of minors, in

violation of 18 U.S.C. § 2252(a)(4)(B). We have jurisdiction under 28

U.S.C.§ 1291, and we affirm.

          *
             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).
      Jackson contends that the district court procedurally erred in calculating the

Sentencing Guidelines range when it assessed criminal history points for a prior

offense, rather than counting it as relevant conduct. This contention lacks merit

because the district court properly counted Jackson’s Wyoming conviction for

possession of child pornography as a prior sentence rather than as relevant conduct.

See U.S.S.G. § 4A1.2(a)(1) and cmt. n.1; U.S.S.G. § 1B1.3, cmt. n.9(B); see also

United States v. Hahn, 960 F.2d 903, 910-911 (9th Cir. 1992).

      Jackson also contends that the sentence is substantively unreasonable

because: (1) the district court failed to consider the government’s delay in bringing

the charges, thereby exposing him to increased punishment from the application of

a Sentencing Guidelines enhancement due to a subsequent state conviction; and (2)

failed to account for the three years he spent in prison on relevant conduct. The

district court declined to second-guess the government’s decision with respect to

the timing of its charging decision and, as discussed supra, Jackson’s earlier prison

sentence did not arise from conduct that is relevant to the instant offense. The

sentence at the statutory maximum, which was below the applicable Guidelines

range, was not unreasonable. See Gall v. United States, 552 U.S. 38, 51 (2007);

see also United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).

      AFFIRMED.


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