NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. JACK KENNETH GANNON, Jr.,

Defendant

- Appellant. No. 17

- 30083
D.C. No. 2:16

- cr - 00086

- TOR

- 1

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding Argued and Submitted October 8, 2021 Seattle, Washington Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges. Jack Kenneth Gannon, Jr. (“Gannon”) pled guilty to receipt of child pornography under 18 U.S.C. § 2252A(a)(2) and possession of child pornograph y under 18 U.S.C. § 2252A(a)(5)(B)

. At sentencing, the district court, to avoid a Double Jeopardy violation, dismissed the possession conviction and imposed an enhanced sentence for the receipt conviction under 18 U.S.C. § 2252A(b)(1). On appeal, Gannon challenges the district court’s determination that his prior

* This dispos ition is not appropriate for publication and is not precedent 

# FILED

DEC 7 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

conviction for possession of child pornography under Revised Code of Washington (“WRC”) § 9.68A. 070 triggers an enhance d sentence under 18 U.S.C. § 2252A(b)

. He also challenges the district court’s decision to sentence him for receipt of child pornography and dismiss the lesser

- included offense of possession. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm in part, vacate in par t and remand for resentencing.
1. Gannon argues that the district court erred by enhancing his sentence on the basis of his prior state conviction for possession of child pornography under
WRC § 9.68A.0 70

. As both parties agree , after our opinion in Unit ed States v.
Reinhart , 893 F.3d 606 (9th Cir. 2018) , a conviction under W R C § 9.68A.0 70 does not qualify as a predicate offense that triggers the enhanced penalties under § 2252A(b). Id. at 618

– 19

. Accordingly, we vacate Gannon’s sentence and remand
for resentencing without application of the sentence enhancement provisions of § 2252A(b).
2. Although Gannon acknowledges that the district court was required to
dismiss one of his convictions, he argues that the court abused its discretion when it dismissed the lesser included offense of possession of child pornography, rather than the greater offense of receipt of child pornography. We review for abuse of
discretion the distr ict court’s choice of which offense to dismiss. United States v.

except as provided by Ninth Circuit Rule 36

- 3.3

Maier , 646 F.3d 1148, 1154 (9th Cir. 2011). “As we have recognized . . . a district court ‘should’ exercise its discretion to
vacate the lesser

- included offense, absent unusual circumstanc es and compelling reasons to vacate the greater offense. ” Id. We have also recognized that the choice
of which count to dismiss is “fundamentally a sentencing decision” and that in exercising its discretion, the court “is to be guided by the [18 U.S.C. ] § 3553(a) [sentencing] factors.” Id. In dismissing the possession conviction, the district
court considered the relevant § 3553(a) factors, including the nature and seriousness of Gannon’s offense conduct, and concluded that his conviction for receipt of child pornography was the appropriate conviction on which to base his sentence. Because there were no “compelling reasons to do otherwise, the district
court did not abuse its discretion.” Id. at 1155. On remand, however, the district court, as part of the resentencing process, may reconsider that decision as it deems appropriate. See United States v. Matthews , 278 F.3d 880 , 885

– 86 (9th Cir. 200 2 ) (en banc).
AFFIRMED in part , VACATED in part and REMANDED for resentencing.