                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 11 2011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. 10-30304

               Plaintiff - Appellee,             D.C. No. 2:10-cr-00009-DWM

  v.
                                                 MEMORANDUM *
WILLIAM AUGUST BRAND,

               Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                             Submitted August 2, 2011 **

Before:        RYMER, IKUTA, and N.R. SMITH, Circuit Judges.

       William August Brand appeals from the 120-month sentence imposed

following his guilty-plea conviction for possession of child pornography, in

violation of 18 U.S.C. § 2252A (a)(5)(B) and (b)(2). 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).
      Brand contends that his Fifth Amendment rights were violated because the

Government “rel[ied] on the underlying facts of a prior conviction in order to

secure a conviction” and “subsequently ... re[lied] on the prior conviction to justify

a substantial increase in the statutory sentence [.]”

      The Fifth Amendment’s Double Jeopardy Clause provides that no person

shall “be subject for the same offense to be twice put in jeopardy of life or limb[.]”

U.S. CONST. amend. V. The clause provides protection from multiple

punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). The

conviction on appeal arose out of Brand’s conduct in 2009, while Brands “prior

conviction” occurred in 2006. Brand fails to demonstrate that he was punished

twice for the same offense. See United States v. Ziskin, 360 F.3d 934, 948 (9th Cir.

2003). The use of the prior conviction at trial and at sentencing does not create a

double jeopardy issue.

      AFFIRMED.




                                            2                                    10-30304
