                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                                FILED
                            FOR THE NINTH CIRCUIT                                  MAY 05 2010

                                                                            MOLLY C. DWYER, CLERK
                                                                                 U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                         No. 09-30204

              Plaintiff - Appellee,               D.C. No. 9:06-CR-00055-DWM-1

  v.
                                                  MEMORANDUM*
JERALD ELMO BROBST,

              Defendant - Appellant.


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

                             Submitted April 5, 2010**
                               Seattle, Washington

Before: GOODWIN, HAWKINS and N.R. SMITH, Circuit Judges.

       Defendant Jerald Elmo Brobst (“Defendant”) was convicted after a bench

trial of, inter alia, receipt of child pornography in violation of 18 U.S.C. §

2252A(a)(2) and possession of child pornography in violation of 18 U.S.C. §


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2252A(a)(5)(B). The district court sentenced him to concurrent terms of 84

months in prison for the receipt and possession counts, and fined him $15,000. On

appeal, this Court concluded that Defendant’s convictions for both receipt and

possession violated the Double Jeopardy Clause, and vacated the sentence with

remand instructions to vacate one of the two convictions. See United States v.

Brobst, 558 F.3d 982, 1000 (9th Cir. 2009) (citing United States v. Davenport, 519

F.3d 940, 947 (9th Cir. 2008)). On remand, Defendant moved for a hearing on

which conviction to vacate and on the proper sentence. The district court denied

Defendant’s motion, dismissed the possession count, and affirmed the original

sentence without a hearing. Defendant appeals, arguing that he should have been

heard on which count to vacate and on the proper new sentence. We affirm.

      This Court’s remand order did not require the district court to hold a hearing

on which conviction to vacate or on the proper sentence. The district court, rather

than a party, decided which conviction to vacate, as required by Ball v. United

States, 470 U.S. 856, 864 (1985). The district court upheld the receipt conviction.

Defendant had the opportunity to be heard regarding the proper sentence for his

receipt conviction at the time of his original sentencing. Accordingly, Defendant

was not deprived of due process.

      AFFIRMED.


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