United States v. Maier, 639 F.3d 927

Maier, a Navy police officer, was investigated for child pornography distribution and possession; evidence showed thousands of images and hundreds of recipient/distributor contacts.
Maier pleaded guilty to Count One (receipt/distribution) in June 2009 and later pleaded guilty to Count Two (possession) at sentencing.
District court determined Counts One and Two were predicated on the same images and vacated Count Two, sentencing Maier under Count One.
Total offense level calculated to 37 with a criminal history category I; advisory range 210–240 months, but statutory maximum for Count One capped at 240 months.
Court sentenced Maier to 210 months’ imprisonment and lifetime supervised release, citing the need to deter and protect the public, and recognizing mitigating factors.
Davenport prohibits dual conviction/sentencing for the same imagery; Hector requires weighing §3553(a) factors to decide which count to vacate, guiding the district court’s discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court properly exercised discretion under Hector guided by §3553(a).	Maier argues the court abused discretion by vacating the lesser count without adequate 3553(a) consideration.	United States contends the court correctly weighed factors and vacated the lesser offense to reflect the seriousness of conduct.	Affirmed district court’s discretionary decision to vacate Count Two and sentence under Count One.
Whether Maier’s sentence is procedurally reasonable under 3553(a) review.	Maier asserts the court failed to adequately explain why no downward departure occurred despite mitigating factors.	United States contends the court provided sufficient rationale and did not err in explaining the sentence.	Sentence not procedurally unreasonable.
Whether Maier’s sentence is substantively reasonable given the §3553(a) factors.	Maier argues mitigating factors should yield a below-Guidelines sentence.	United States maintains factors weighed against a downward departure due to severity and risk statements.	Sentence substantively reasonable.

United States v. Davenport, 519 F.3d 940 (9th Cir. 2008) (Double jeopardy prohibits dual conviction/sentencing for same images; district court must decide which count to vacate)
United States v. Hector, 577 F.3d 1099 (9th Cir. 2009) (Court must exercise discretion under Hector to determine which count to vacate, guided by 3553(a))
United States v. Jose, 425 F.3d 1237 (9th Cir. 2005) (Abstention from vacating greater offense absent compelling reasons; court should vacate lesser offense in typical cases)
Batchelder v. United States, 442 U.S. 114 (U.S. 1979) (No right to choose penalty scheme; sentencing discretion can be guided by statutory structure)
Rita v. United States, 551 U.S. 338 (U.S. 2007) (Guidelines are advisory; courts consider 3553(a) factors in selecting sentence)
Gall v. United States, 552 U.S. 38 (U.S. 2007) (Abuse-of-discretion review of sentences within or outside Guidelines range)
United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (Adopted two-part test for abuse-of-discretion review post-Hinkson)
United States v. Schales, 546 F.3d 965 (9th Cir. 2008) (Precedent on sentencing and related standards (contextual reference))
Ball v. United States, 470 U.S. 856 (U.S. 1985) (Guidelines and discretion in selecting appropriate offense to punish)