                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                           FOR THE NINTH CIRCUIT                            MAY 16 2013

                                                                        MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA,                        No. 12-10244            U .S. C O U R T OF APPE ALS




              Plaintiff - Appellee,              D.C. No. 2:11-cr-00249-KJD-
                                                 CWH-1
  v.

ERIC EVERETT MILLS,                              MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                             Submitted April 18, 2013 **
                              San Francisco, California

Before: GRABER and CHRISTEN, Circuit Judges, and TUNHEIM,*** District
Judge.

       Defendant Eric Everett Mills appeals from the district court’s imposition of a

sentence of 97 months’ imprisonment following his guilty plea for receipt of child


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
        ***
           The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
pornography, in violation of 18 U.S.C. § 2252A(a)(2) & (b), and for possession of

child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). We affirm.

      1. We review for plain error Defendant’s procedural objections to the

district court’s decision to vacate the possession conviction. See United States v.

Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010) ("Where, as here, a

defendant failed to object on the ground that the district court erred procedurally in

explaining and applying the [18 U.S.C.] § 3553(a) factors, we review only for plain

error."). The decision as to which conviction to vacate under United States v.

Davenport, 519 F.3d 940 (9th Cir. 2008), lies within the district court’s discretion.

See United States v. Hector, 577 F.3d 1099, 1103–04 (9th Cir. 2009).

      2. Defendant argues that the district court did not consider the § 3553(a)

factors. "Trial judges are presumed to know the law and to apply it in making their

decisions." Walton v. Arizona, 497 U.S. 639, 653 (1990), overruled on other

grounds by Ring v. Arizona, 536 U.S. 584, 609 (2002). Nothing in the record here

overcomes that presumption.

      3. Nor did the district court commit plain error by failing to explain how the

§ 3553(a) factors applied. See Olano v. United States, 507 U.S. 725, 734 (1993)

(holding that, to constitute "plain" error, an error must be "obvious" or "clear").

Although district courts must consider the § 3553(a) factors, United States v.


                                           2
Maier, 646 F.3d 1148, 1154 (9th Cir.), cert. denied, 132 S. Ct. 601 (2011), we have

never held that a district court must explain the specific application of those factors

apart from its explanation concerning the choice of an appropriate sentence. The

district court’s explanation here was careful and thorough.

      4. The sentence at the low end of the Guidelines range is not substantively

unreasonable in this case. See generally United States v. Carty, 520 F.3d 984 (9th

Cir. 2008) (en banc).

      AFFIRMED.




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