United States v. Steven Byington

MEMORANDUM

Steven Byington appeals from the district court’s judgment and challenges his jury-trial convictions and 168-month sen tence for receipt of child pornography, in violation of 18 U.S.C. § 2552A(a)(2) and (b); and possession of child pornography, in violation of 18 U.S.C. § 2552A(a)(5)(B). We have jurisdiction under 28 U.S.C. § 1291 . We affirm Byington’s sentence, but vacate the judgment and remand with instructions.

Byington contends that the court proee-durally erred by failing to explain why it sentenced Byington on the receipt conviction and by failing to clearly vacate the possession count. He also argues that his sentence is substantively unreasonable.

As the government concedes, Byington’s convictions for both receipt of child pornography and possession of child pornography based on the same conduct violate the prohibition against double jeopardy. See United States v. Davenport, 519 F.3d 940, 947 (9th Cir.2008). Thus, the possession count must be vacated. However, we decline Byington’s invitation to vacate his sentence. Contrary to Byington’s contention, the record makes clear why the court chose to sentence him on the receipt count. The court adopted the…