United States v. Hector

O’SCANNLAIN, Circuit Judge:

As between the prosecutor and the trial judge, who determines which conviction to vacate when a defendant has been convicted of multiplicitous offenses in violation of the Double Jeopardy Clause?

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…