NOT FOR PUBLICATION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 pornography 

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 disposition is not appropriate for publication and is not precedent 

FILED

DEC 7 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

conviction for possession of child pornography under Revised Code of Washington 

(“WRC”) § 9.68A.070 triggers an enhanced 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 part 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.070. As both parties agree, after our opinion in United States v. 

Reinhart, 893 F.3d 606 (9th Cir. 2018), a conviction under WRC § 9.68A.070 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 district 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 circumstances 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. 2002)

(en banc). 

AFFIRMED in part, VACATED in part and REMANDED for 

resentencing.