                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 08-30271
                Plaintiff-Appellee,           D.C. No.
               v.                         9:07-CR-00073-
RICKY LEE HECTOR,                              DWM-1
             Defendant-Appellant.
                                             OPINION

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

                   Argued and Submitted
              June 5, 2009—Portland, Oregon

                   Filed August 18, 2009

 Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain and
            Raymond C. Fisher, Circuit Judges.

              Opinion by Judge O’Scannlain




                           11275
                   UNITED STATES v. HECTOR               11277


                         COUNSEL

John Rhodes, Assistant Federal Defender, Federal Defenders
of Montana, Missoula, Montana argued the cause for
Defendant-Appellant and filed briefs. Anthony R. Gallagher,
Federal Defender, Federal Defenders of Montana, Missoula,
Montana was also on the briefs.

Cyndee L. Peterson, Assistant United States Attorney, Mis-
soula, Montana, argued the cause for the United States and
submitted a brief. William W. Mercer, United States Attor-
ney, Missoula, Montana, was on the brief.


                         OPINION

O’SCANNLAIN, Circuit Judge:

  As between the prosecutor and the trial judge, who deter-
mines which conviction to vacate when a defendant has been
convicted of multiplicitous offenses in violation of the Double
Jeopardy Clause?
11278                 UNITED STATES v. HECTOR
                                   I

   Ricky Hector possessed child pornography through a peer-
to-peer network which allowed for file-sharing. He pled guilty
to both receipt (Count I) and possession (Count II) of child
pornography. See 18 U.S.C. §§ 2252A(a)(2) (receipt);
2252A(a)(5)(b) (possession). Shortly after he pled, we
decided United States v. Davenport, 519 F.3d 940 (9th Cir.
2008), which held that conviction and sentencing for both
receipt and possession violates the Double Jeopardy Clause
when the charges are predicated on the same image or set of
images.

   Hector thereafter moved to vacate either the possession or
receipt conviction.1 The government argued that vacation of
the possession conviction was not appropriate until after sen-
tencing on the receipt charge. In his reply brief, “Hector
urge[d] the Court to make its decision pre-sentencing and to
dismiss the receipt count so that the Court can sentence Mr.
Hector in compliance with 18 U.S.C. § 3553(a).” In other
words, he did not want the mandatory five-year minimum for
receipt to apply to him. See 18 U.S.C. § 2252A(b)(1). The
defense also noted the difference in the Guidelines base
offense level for receipt (22) as opposed to possession (18).
See U.S.S.G. § 2G2.2. The district court decided to address
the matter during sentencing.

   At sentencing, the prosecution asserted that the government
had the right to determine which charge should go; the
defense said that discretion lay with the court. After argument
from both sides, the district court stated: “And while I may
disagree with [the prosecutor’s] position as to who has the
  1
   For double jeopardy purposes, once a guilty plea has been accepted,
the defendant stands convicted. See United States v. Patterson, 381 F.3d
859, 864 (9th Cir. 2004). Although some cases refer to post-guilty plea
vacations as “dismissals” of “charges,” we will use the conviction-based
language.
                    UNITED STATES v. HECTOR                11279
authority [to decide which conviction should be vacated] and
when that authority should be exercised, I’m not sure that this
is the case that would be appropriate to resolve that.” The
court then started with the base offense level for receipt of
child pornography (level 22) and, with adjustments, arrived at
a final offense level of 30. Hector had no criminal history.

   After the prosecution argued for its preferred sentence, the
court noted that the prosecutor had not moved to vacate either
conviction. The prosecutor responded that she would do so
after Hector was sentenced on Count I. “Then I’ll sentence
him on Count II,” the court replied. “But I have to sentence
him, and I can only sentence him on one count. And if that’s
your choice, I’m going to sentence him under the count that
I believe is appropriate.” The prosecution then moved to
vacate the possession conviction, and the court granted that
motion. The court imposed a sentence for receipt at the low
end of the Guidelines range: 97 months. Hector timely
appealed.

                                II

                                A

   On appeal, Hector argues that the district court was
required to use its discretion in determining whether to vacate
the receipt conviction or the possession conviction. Because,
in general, “[t]he existence of discretion requires its exercise,”
United States v. Miller, 722 F.2d 562, 565 (9th Cir. 1983), we
must reverse and remand if the district court allowed the pros-
ecutor to dictate a choice that should have been made by the
court. If a double jeopardy violation occurs, “ ‘the only rem-
edy consistent with the congressional intent is for the District
Court, where the sentencing responsibility resides, to exercise
its discretion to vacate one of the underlying convictions.’ ”
United States v. Schales, 546 F.3d 965, 980 (9th Cir. 2008)
(quoting Ball v. United States, 470 U.S. 856, 864 (1985)).
11280              UNITED STATES v. HECTOR
                               B

   [1] The government first contends that its actions were
proper under Rule 48(a) of the Federal Rules of Criminal Pro-
cedure. Rule 48(a) states that “[t]he government may, with
leave of court, dismiss an indictment, information, or com-
plaint. The government may not dismiss the prosecution dur-
ing trial without the defendant’s consent.” Despite the
wording of the rule, it is well established that the government
may move to dismiss even after a complaint has turned into
a conviction because of a guilty plea. See, e.g., Rinaldi v.
United States, 434 U.S. 22 (1977); United States v. Gonzalez,
58 F.3d 459 (9th Cir. 1995).

   The government relies on cases in which we reversed the
district court for failing to grant a Rule 48(a) motion after a
guilty plea had been entered and accepted. See Gonzalez, 58
F.3d at 460; United States v. Garcia-Valenzuela, 232 F.3d
1003 (9th Cir. 2000); Vasquez-Ramirez v. United States Dist.
Court (Burns), 443 F.3d 692 (9th Cir. 2006). However, the
government overlooks a common thread running through
these cases — in each of them, the defendant had expressly
consented, was not required to consent, or affirmatively indi-
cated his non-objection.

   In Gonzalez, the government moved to vacate one of the
counts of conviction because of the defendant’s post-plea
cooperation and his lack of awareness that conviction of that
particular count would lead to his deportation. 58 F.3d at 462.
In Garcia-Valencia, the government moved to dismiss four
out of five counts against the defendant, and his attorney
stated that he had no objection. 232 F.3d at 1005. We did not
decide whether or not Garcia-Valenzuela consented because
the Rule 48(a) motion was made prior to the entry of a plea.
Id. at 1008 n.5. Finally, in Vasquez-Ramirez, we issued a writ
of mandamus to force a district court to accept a guilty plea
to a violation of 8 U.S.C. § 1325. We assigned the case to a
new district judge because the district court had “told the par-
                       UNITED STATES v. HECTOR                       11281
ties that he will not grant any motion the government may file
to dismiss the [more serious] section 1326 indictment, even
though he would likely have no basis for denying such a
motion.”2 443 F.3d at 701. Again, the case had not reached
trial, so the defendant’s consent was not necessary for the
government to move for dismissal.

   The government makes much of some of Gonzalez’s lan-
guage, which appears on its face to support a broad prosecu-
torial power to decide when to vacate convictions:

     Separation-of-powers concerns generally require a
     district court to defer to the government’s decision to
     seek a dismissal of a criminal charge because a
     denial of the motion would represent an intrusion
     upon prosecutorial prerogative. The decision to dis-
     miss an indictment implicates concerns that the
     Executive is uniquely suited to evaluate, and a dis-
     trict court should be reluctant to deny its request.

Gonzalez, 58 F.3d at 462 (internal citations omitted).

   However, our statement cannot be separated from the con-
text in which it was made:

     We emphasize that the degree of deference accorded
     to the prosecutor’s decision in this case hinges in
     part upon the fact that the defendant consented to the
     motion. When the defendant contests a Rule 48(a)
     motion, the motion raises concerns that are not pres-
     ent when a court considers an uncontested motion to
     dismiss: the district judge . . . must be careful to
     safeguard [the defendant’s] rights.
   2
     Only if the proposed dismissal “was clearly contrary to manifest public
interest” might the district court have had discretion to deny it. Garcia-
Valencia, 232 F.3d at 1008 (internal quotation marks omitted) (noting that
both the Supreme Court and this circuit have reserved judgment on
whether a consented-to Rule 48(a) motion may ever be denied).
11282                UNITED STATES v. HECTOR
Id.

   Here, the defendant’s right not to “be subject for the same
offence to be twice put in jeopardy of life or limb,” U.S.
CONST. amend. V, is directly implicated.

   [2] Our case law has consistently recognized the impor-
tance of the defendant’s consent to a Rule 48(a) motion which
seeks to vacate a conviction. In Patterson, 381 F.3d 859, the
defendant pled guilty to manufacturing marijuana. The plea
agreement did not stipulate the number of plants for which he
was responsible; that would “be litigated at sentencing.” Id. at
861 (quoting plea agreement). After the guilty plea but before
sentencing, the Supreme Court decided Apprendi v. New Jer-
sey, 530 U.S. 466 (2000), which required the number of plants
to be found beyond a reasonable doubt by the jury or stipu-
lated to by the defendant. The maximum sentence authorized
by statute hinged on that number. See Patterson, 381 F.3d at
862 (quoting plea colloquy). After Apprendi, the district court
— over Patterson’s objections — vacated his guilty plea and
set the case for trial by jury. The jury found that he had manu-
factured over one hundred plants. Based on that amount, Pat-
terson was sentenced to 188 months in prison.

   Concluding that the trial violated Patterson’s double jeop-
ardy rights, we reversed. “Once the court accepted the plea
. . . the court was not free to vacate the plea on the govern-
ment’s motion.” Id. at 864. Because the plea was proper, jeop-
ardy had attached. The government could not nullify the count
to which Patterson had actually pled in order to recharge him
with a new count incorporating all the elements necessary
under Apprendi for a higher sentence. The court directed the
district court to sentence the defendant for the base offense of
marijuana distribution (without enhancement based on a cer-
tain number of plants). Id. at 866.3
  3
   Thus, Patterson could only be sentenced to a maximum of sixty
months, eleven years less than what he would have otherwise received.
See Patterson, 381 F.3d at 866.
                   UNITED STATES v. HECTOR                11283
   [3] Our decision in United States v. Partida-Parra, 859
F.2d 629 (9th Cir. 1988), buttresses our conclusion. After the
defendant entered a guilty plea to a misdemeanor drug offense
as part of a plea agreement, the prosecutor asked the court to
vacate that conviction to allow the prosecutor to press a fel-
ony drug offense. (Apparently there had been a “clerical”
error caused by the prosecutor’s office). The district court
obliged. We reversed, noting that a trial court may change its
decision to accept a guilty plea only if there was no “factual
basis for the plea” or “upon a showing by the defendant of any
fair and just reason.” Id. at 631-32 (quoting Fed. R. Crim. P.
11(f), 32(d)). “Neither Rule 32(d) nor any other provision of
the Federal Rules expressly contemplates government
motions to set aside a plea.” Id. at 632.

   [4] In Partida-Parra, we reviewed cases involving a dis-
trict court’s power to undo an accepted plea bargain. After
looking at cases from other circuits, we concluded that “the
district court is not authorized to go beyond the confines of
Rule 11 in accepting or rejecting plea agreements.” Id. The
district court’s ability to reject plea agreements prior to
accepting them is clearly stated in the Rules. See Fed. R.
Crim. P. 11(c). In contrast, under Ellis v. United States Dist.
Court (Tanner), 356 F.3d 1198 (9th Cir. 2004) (en banc), the
court has very little power not to accept a naked guilty plea.
Thus, a fortiori, if the court could not withdraw the plea bar-
gain in Partida-Parra, it could not have voided a naked guilty
plea under similar circumstances. The government offers no
reason for us to conclude the result here should be any differ-
ent.

                               C

   [5] Nor is the government entitled to retain the greater con-
viction under Sasone v. United States, 380 U.S. 343 (1965).
Simply put, Sasone teaches that where there is no set of dis-
puted facts that would allow for conviction of a lesser-
included offense but not the more serious offense, the defen-
11284               UNITED STATES v. HECTOR
dant does not have the right to a lesser-included offense
instruction. Thus, if the government had only charged receipt,
and the case had gone to a jury trial, Hector would not have
been entitled to a lesser-included instruction unless he pro-
duced some evidence that he did not receive any child por-
nography. This statement may well make the government’s
point that Hector has no right to stand convicted of and be
sentenced on the lesser charge. In such case, however, neither
Hector nor the government has the right to determine which
charge will stand. Accordingly, consistent with Ball and
Schales, the decision to vacate must lie in the discretion of the
district court. Because the district court failed to exercise its
own discretion here, it erred.

                               III

   [6] The government argues that any error in Hector’s case
is harmless because “[t]here is no reason to think that, if Hec-
tor received a remand, anything different would occur.” We
are not telepaths, and we decline the invitation to guess what
the district court would have done with its discretion. In any
event, the burden of demonstrating the harmlessness of any
error is on the government, and it can not sustain that burden
given the district court’s statement that it would sentence on
the possession count if the government did not choose which
conviction to vacate. We will instead “ask the person who
knows the answer, the sentencing judge.” United States v.
Ameline, 409 F.3d 1073, 1079 (9th Cir. 2005) (en banc).

   We also decline the government’s invitation to decide the
matter ourselves on the ground that “Davenport . . . was not
[about] giving defendants a get-out-of-a-receipt-conviction-
free card.” In other words, the government would have us
believe that Congress intended that the more severe penalty
must apply where a defendant’s conduct violated two statutes
and the prosecutor decided the case warranted the more
severe charge. This position is foreclosed by the Supreme
Court’s decision in Ball and its progeny, in which the district
                    UNITED STATES v. HECTOR                11285
court was instructed to use its discretion even though one
count of conviction carried a greater penalty than the other.
See, e.g., Ball, 470 U.S. at 866 (noting that one statute carried
a five-year maximum while the other statute carried a two-
year maximum); Schales, 546 F.3d at 977-81 (involving a
receipt count with a five-year minimum and a twenty-year
maximum while the possession count had no minimum and a
ten-year maximum).

                               IV

  [7] We reverse and remand for the district court to hold a
hearing and then to make a discretionary determination as to
which conviction should be vacated.

  REVERSED AND REMANDED.
