United States v. Powers, 2016 U.S. App. LEXIS 20767

Powers, a babysitter, took multiple sexually explicit photographs of a 7‑year‑old and distributed them to an undercover FBI agent; searches recovered ~125 images and other child pornography on his devices.
A federal grand jury indicted Powers on eleven production counts (18 U.S.C. § 2251), one distribution count, and one possession count.
One image (allegedly underlying Count Six) depicted the child’s bare chest rather than the pubic area.
Powers pleaded guilty to all counts without a plea agreement and was sentenced to a 480‑month prison term (various concurrent and consecutive terms).
The Government concedes there was plain error: the bare‑chest image did not meet § 2251’s definition of “sexually explicit conduct,” so that count lacked a factual basis and must be vacated.
The remaining dispute is the proper remedy: whether vacatur of the single deficient count requires de novo resentencing or a simple amended judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the bare‑chest image provided a factual basis for a § 2251 production conviction	Gov: plain error; concession that the image is not "sexually explicit conduct" under § 2251 and that conviction for that image must be vacated	Powers: accepted vacatur of that count (no contest to lack of factual basis)	Court: vacated the count because the image falls outside § 2251’s definition; conviction for that count must be set aside
Whether vacatur of one count requires de novo resentencing or just amendment of the judgment	Gov: resubmission unnecessary; district court may amend the judgment without resentencing (relies on Moreno‑Montenegro practice)	Powers: Rigas/Quintieri line requires de novo resentencing when a conviction error alters the sentencing mosaic	Court: Rigas controls; except where mandatory minimums make amendment purely ministerial, de novo resentencing is required; remand for vacatur of the erroneous count and de novo resentencing

United States v. Rigas, 583 F.3d 108 (2d Cir. 2009) (adopting de novo resentencing as the rule when part of a conviction is reversed)
United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002) (describing default rule that conviction errors typically require de novo resentencing)
United States v. Barresi, 361 F.3d 666 (2d Cir. 2004) (discussing impact of vacated convictions on sentencing calculations)
United States v. Burrell, 467 F.3d 160 (2d Cir. 2006) (permitting amended judgment where a mandatory sentence rendered amendment ministerial)
United States v. Miller, 116 F.3d 641 (2d Cir. 1997) (practice of amending judgment affirmed where mandatory sentence controlled)
United States v. Desnoyers, 708 F.3d 378 (2d Cir. 2013) (typical entitlement to de novo resentencing when vacatur alters the constellation of convictions)
United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) (3553(a) factors and appropriate weight at resentencing)