Armbrister

MEMORANDUM *

Barry Armbrister appeals his conviction and sentencing for receipt of child pornography under 18 U.S.C. § 2252A(a)(2). We have jurisdiction under 28 U.S.C. § 1291 , and now affirm. The facts are well-known to the parties and need not be addressed here.

Armbrister asserts that the district court erred by vacating his possession con *214 viction rather than his receipt conviction under United States v. Davenport, 519 F.3d 940 (9th Cir.2008). Today, in United States v. Hector, 577 F.3d 1099 (9th Cir. 2009), we hold that where the defendant objects to the government’s motion to vacate, the district court is required to use its discretion in determining which conviction to vacate rather than deferring to the prosecutor. However, Armbrister filed a statement of non-objection to the government’s motion to vacate his possession conviction. Accordingly, even after our decision in Hector it was not plain error for the district court to vacate Armbrister’s possession conviction under Federal Rule of Criminal Procedure 48(a). See Rinaldi v. United States, 434 U.S. 22 , 98 S.Ct. 81 , 54 L.Ed.2d 207 (1977) (applying Rule 48(a) post-conviction); United States v. Gonzalez, 58 F.3d…