Opinion
No. 07-30357.
Argued and Submitted December 9, 2008.
Filed December 15, 2008.
Marcia Kay Hurd, Esquire, Assistant U.S., William W. Mercer, Esquire, Mark Steger Smith, Esquire, Assistant U.S., Office of the U.S. Attorney, Billings, MT, for Plaintiff-Appellee.
Wendy Holton, Attorney at Law, Helena, MT, for Defendants-Appellant.
Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. CR-06-00076-SEH.
Before: O'SCANNLAIN, GRABER, and BYBEE, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
We vacate the judgment and remand in light of United States v. Davenport, 519 F.3d 940 (9th Cir. 2008). On remand, the district court should vacate either Heddings' conviction for receipt or his conviction for possession of child pornography, "allowing for it to be reinstated without prejudice if his other conviction should be overturned on direct or collateral review." Id. at 948.
Any further appeals in this case shall be assigned to this panel.