                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 18 2010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. 09-10133

             Plaintiff - Appellee,               D.C. No. 1:08-CR-00174-AWI-1

  v.
                                                 MEMORANDUM *
BRADLY LEO NELSON,

             Defendant - Appellant.



                  Appeal from the United States District Court
                      for the Eastern District of California
                 Anthony W. Ishii, Chief District Judge, Presiding

                       Argued and Submitted March 8, 2010
                            San Francisco, California

Before: HUG, REINHARDT and BYBEE, Circuit Judges.




       Defendant Bradly Leo Nelson appeals his conviction and sentence for

receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         The district court did not abuse its discretion in imposing Nelson’s federal

sentence for child pornography to run partially consecutive to his state sentence for

child molestation. The court correctly found that the state and federal convictions

were based on different harms to different victims at different times, and thus did

not result from the same course of conduct.

         We also reject Nelson’s argument that the district court abused its discretion

in imposing prepubescent victim, sadistic or masochistic conduct, and vulnerable

victim sentencing enhancements. This claim is foreclosed by United States v. Holt,

510 F.3d 1007 (9th Cir. 2007) and United States v. Wright, 373 F.3d 935 (9th Cir.

2004).

         Finally, the district court did not abuse its discretion in rejecting Nelson’s

prosecutorial misconduct claim, which was based on the government’s re-filing of

his federal indictment after he was sentenced for state charges that resulted from

the same investigation. Nelson has presented no evidence that there was an

agreement not to re-file the federal charges or that the government acted in bad

faith by doing so.

         AFFIRMED.
