United States v. Eric Mills

MEMORANDUM

Defendant Eric Everett Mills appeals from the district court’s imposition of a sentence of 97 months’ imprisonment following his guilty plea for receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) & (b), and for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). We affirm.

1. We review for plain error Defendant’s procedural objections to the district court’s decision to vacate the possession conviction. See United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010) (“Where, as here, a defendant failed to object on the ground that the district court erred procedurally in explaining and applying the [18 U.S.C.] § 3553(a) factors, we review only for plain error.”). The decision as to which conviction to vacate under United States v. Davenport, 519 F.3d 940 (9th Cir.2008), lies within the district court’s discretion. See United States v. Hector, 577 F.3d 1099, 1103-04 (9th Cir.2009).

2. Defendant argues that the district court did not consider the § 3553(a) factors. “Trial judges are presumed to know the law and to apply it in making their decisions.” Walton v. Arizona, 497 U.S. 639, 653 , 110 S.Ct. 3047 , 111…