FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-30271

Plaintiff-Appellee, D.C. No.

v.  9:07-CR-00073-

DWM-1 RICKY LEE HECTOR,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, Chief Judge, Presiding

Argued and Submitted

June 5, 2009—Portland, Oregon

Filed August 18, 2009

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge O’Scannlain

11275
COUNSEL

John Rhodes, Assistant Federal Defender, Federal Defenders

of Montana, Missoula, Montana argued the cause for

Defendant-Appellant and filed briefs. Anthony R. Gallagher,

Federal Defender, Federal Defenders of Montana, Missoula,

Montana was also on the briefs.

Cyndee L. Peterson, Assistant United States Attorney, Missoula, Montana, argued the cause for the United States and

submitted a brief. William W. Mercer, United States Attorney, Missoula, Montana, was on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

As between the prosecutor and the trial judge, who determines which conviction to vacate when a defendant has been

convicted of multiplicitous offenses in violation of the Double

Jeopardy Clause?

UNITED STATES v. HECTOR 11277
I

Ricky Hector possessed child pornography through a peerto-peer network which allowed for file-sharing. He pled guilty

to both receipt (Count I) and possession (Count II) of child

pornography. See 18 U.S.C. §§ 2252A(a)(2) (receipt);

2252A(a)(5)(b) (possession). Shortly after he pled, we

decided United States v. Davenport, 519 F.3d 940 (9th Cir.

2008), which held that conviction and sentencing for both

receipt and possession violates the Double Jeopardy Clause

when the charges are predicated on the same image or set of

images.

Hector thereafter moved to vacate either the possession or

receipt conviction.1 The government argued that vacation of

the possession conviction was not appropriate until after sentencing on the receipt charge. In his reply brief, “Hector

urge[d] the Court to make its decision pre-sentencing and to

dismiss the receipt count so that the Court can sentence Mr.

Hector in compliance with 18 U.S.C. § 3553(a).” In other

words, he did not want the mandatory five-year minimum for

receipt to apply to him. See 18 U.S.C. § 2252A(b)(1). The

defense also noted the difference in the Guidelines base

offense level for receipt (22) as opposed to possession (18).

See U.S.S.G. § 2G2.2. The district court decided to address

the matter during sentencing. 

At sentencing, the prosecution asserted that the government

had the right to determine which charge should go; the

defense said that discretion lay with the court. After argument

from both sides, the district court stated: “And while I may

disagree with [the prosecutor’s] position as to who has the

1For double jeopardy purposes, once a guilty plea has been accepted,

the defendant stands convicted. See United States v. Patterson, 381 F.3d

859, 864 (9th Cir. 2004). Although some cases refer to post-guilty plea

vacations as “dismissals” of “charges,” we will use the conviction-based

language. 

11278 UNITED STATES v. HECTOR
authority [to decide which conviction should be vacated] and

when that authority should be exercised, I’m not sure that this

is the case that would be appropriate to resolve that.” The

court then started with the base offense level for receipt of

child pornography (level 22) and, with adjustments, arrived at

a final offense level of 30. Hector had no criminal history.

After the prosecution argued for its preferred sentence, the

court noted that the prosecutor had not moved to vacate either

conviction. The prosecutor responded that she would do so

after Hector was sentenced on Count I. “Then I’ll sentence

him on Count II,” the court replied. “But I have to sentence

him, and I can only sentence him on one count. And if that’s

your choice, I’m going to sentence him under the count that

I believe is appropriate.” The prosecution then moved to

vacate the possession conviction, and the court granted that

motion. The court imposed a sentence for receipt at the low

end of the Guidelines range: 97 months. Hector timely

appealed.

II

A

On appeal, Hector argues that the district court was

required to use its discretion in determining whether to vacate

the receipt conviction or the possession conviction. Because,

in general, “[t]he existence of discretion requires its exercise,”

United States v. Miller, 722 F.2d 562, 565 (9th Cir. 1983), we

must reverse and remand if the district court allowed the prosecutor to dictate a choice that should have been made by the

court. If a double jeopardy violation occurs, “ ‘the only remedy consistent with the congressional intent is for the District

Court, where the sentencing responsibility resides, to exercise

its discretion to vacate one of the underlying convictions.’ ”

United States v. Schales, 546 F.3d 965, 980 (9th Cir. 2008)

(quoting Ball v. United States, 470 U.S. 856, 864 (1985)).

UNITED STATES v. HECTOR 11279
B

[1] The government first contends that its actions were

proper under Rule 48(a) of the Federal Rules of Criminal Procedure. Rule 48(a) states that “[t]he government may, with

leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.” Despite the

wording of the rule, it is well established that the government

may move to dismiss even after a complaint has turned into

a conviction because of a guilty plea. See, e.g., Rinaldi v.

United States, 434 U.S. 22 (1977); United States v. Gonzalez,

58 F.3d 459 (9th Cir. 1995).

The government relies on cases in which we reversed the

district court for failing to grant a Rule 48(a) motion after a

guilty plea had been entered and accepted. See Gonzalez, 58

F.3d at 460; United States v. Garcia-Valenzuela, 232 F.3d

1003 (9th Cir. 2000); Vasquez-Ramirez v. United States Dist.

Court (Burns), 443 F.3d 692 (9th Cir. 2006). However, the

government overlooks a common thread running through

these cases — in each of them, the defendant had expressly

consented, was not required to consent, or affirmatively indicated his non-objection. 

In Gonzalez, the government moved to vacate one of the

counts of conviction because of the defendant’s post-plea

cooperation and his lack of awareness that conviction of that

particular count would lead to his deportation. 58 F.3d at 462.

In Garcia-Valencia, the government moved to dismiss four

out of five counts against the defendant, and his attorney

stated that he had no objection. 232 F.3d at 1005. We did not

decide whether or not Garcia-Valenzuela consented because

the Rule 48(a) motion was made prior to the entry of a plea.

Id. at 1008 n.5. Finally, in Vasquez-Ramirez, we issued a writ

of mandamus to force a district court to accept a guilty plea

to a violation of 8 U.S.C. § 1325. We assigned the case to a

new district judge because the district court had “told the par11280 UNITED STATES v. HECTOR
ties that he will not grant any motion the government may file

to dismiss the [more serious] section 1326 indictment, even

though he would likely have no basis for denying such a

motion.”2 443 F.3d at 701. Again, the case had not reached

trial, so the defendant’s consent was not necessary for the

government to move for dismissal.

The government makes much of some of Gonzalez’s language, which appears on its face to support a broad prosecutorial power to decide when to vacate convictions:

Separation-of-powers concerns generally require a

district court to defer to the government’s decision to

seek a dismissal of a criminal charge because a

denial of the motion would represent an intrusion

upon prosecutorial prerogative. The decision to dismiss an indictment implicates concerns that the

Executive is uniquely suited to evaluate, and a district court should be reluctant to deny its request.

Gonzalez, 58 F.3d at 462 (internal citations omitted). 

However, our statement cannot be separated from the context in which it was made: 

We emphasize that the degree of deference accorded

to the prosecutor’s decision in this case hinges in

part upon the fact that the defendant consented to the

motion. When the defendant contests a Rule 48(a)

motion, the motion raises concerns that are not present when a court considers an uncontested motion to

dismiss: the district judge . . . must be careful to

safeguard [the defendant’s] rights.

2Only if the proposed dismissal “was clearly contrary to manifest public

interest” might the district court have had discretion to deny it. GarciaValencia, 232 F.3d at 1008 (internal quotation marks omitted) (noting that

both the Supreme Court and this circuit have reserved judgment on

whether a consented-to Rule 48(a) motion may ever be denied). 

UNITED STATES v. HECTOR 11281
Id.

Here, the defendant’s right not to “be subject for the same

offence to be twice put in jeopardy of life or limb,” U.S.

CONST. amend. V, is directly implicated.

[2] Our case law has consistently recognized the importance of the defendant’s consent to a Rule 48(a) motion which

seeks to vacate a conviction. In Patterson, 381 F.3d 859, the

defendant pled guilty to manufacturing marijuana. The plea

agreement did not stipulate the number of plants for which he

was responsible; that would “be litigated at sentencing.” Id. at

861 (quoting plea agreement). After the guilty plea but before

sentencing, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), which required the number of plants

to be found beyond a reasonable doubt by the jury or stipulated to by the defendant. The maximum sentence authorized

by statute hinged on that number. See Patterson, 381 F.3d at

862 (quoting plea colloquy). After Apprendi, the district court

— over Patterson’s objections — vacated his guilty plea and

set the case for trial by jury. The jury found that he had manufactured over one hundred plants. Based on that amount, Patterson was sentenced to 188 months in prison. 

Concluding that the trial violated Patterson’s double jeopardy rights, we reversed. “Once the court accepted the plea

. . . the court was not free to vacate the plea on the government’s motion.” Id. at 864. Because the plea was proper, jeopardy had attached. The government could not nullify the count

to which Patterson had actually pled in order to recharge him

with a new count incorporating all the elements necessary

under Apprendi for a higher sentence. The court directed the

district court to sentence the defendant for the base offense of

marijuana distribution (without enhancement based on a certain number of plants). Id. at 866.3

3Thus, Patterson could only be sentenced to a maximum of sixty

months, eleven years less than what he would have otherwise received.

See Patterson, 381 F.3d at 866. 

11282 UNITED STATES v. HECTOR
[3] Our decision in United States v. Partida-Parra, 859

F.2d 629 (9th Cir. 1988), buttresses our conclusion. After the

defendant entered a guilty plea to a misdemeanor drug offense

as part of a plea agreement, the prosecutor asked the court to

vacate that conviction to allow the prosecutor to press a felony drug offense. (Apparently there had been a “clerical”

error caused by the prosecutor’s office). The district court

obliged. We reversed, noting that a trial court may change its

decision to accept a guilty plea only if there was no “factual

basis for the plea” or “upon a showing by the defendant of any

fair and just reason.” Id. at 631-32 (quoting Fed. R. Crim. P.

11(f), 32(d)). “Neither Rule 32(d) nor any other provision of

the Federal Rules expressly contemplates government

motions to set aside a plea.” Id. at 632.

[4] In Partida-Parra, we reviewed cases involving a district court’s power to undo an accepted plea bargain. After

looking at cases from other circuits, we concluded that “the

district court is not authorized to go beyond the confines of

Rule 11 in accepting or rejecting plea agreements.” Id. The

district court’s ability to reject plea agreements prior to

accepting them is clearly stated in the Rules. See Fed. R.

Crim. P. 11(c). In contrast, under Ellis v. United States Dist.

Court (Tanner), 356 F.3d 1198 (9th Cir. 2004) (en banc), the

court has very little power not to accept a naked guilty plea.

Thus, a fortiori, if the court could not withdraw the plea bargain in Partida-Parra, it could not have voided a naked guilty

plea under similar circumstances. The government offers no

reason for us to conclude the result here should be any different.

C

[5] Nor is the government entitled to retain the greater conviction under Sasone v. United States, 380 U.S. 343 (1965).

Simply put, Sasone teaches that where there is no set of disputed facts that would allow for conviction of a lesserincluded offense but not the more serious offense, the defenUNITED STATES v. HECTOR 11283
dant does not have the right to a lesser-included offense

instruction. Thus, if the government had only charged receipt,

and the case had gone to a jury trial, Hector would not have

been entitled to a lesser-included instruction unless he produced some evidence that he did not receive any child pornography. This statement may well make the government’s

point that Hector has no right to stand convicted of and be

sentenced on the lesser charge. In such case, however, neither

Hector nor the government has the right to determine which

charge will stand. Accordingly, consistent with Ball and

Schales, the decision to vacate must lie in the discretion of the

district court. Because the district court failed to exercise its

own discretion here, it erred.

III

[6] The government argues that any error in Hector’s case

is harmless because “[t]here is no reason to think that, if Hector received a remand, anything different would occur.” We

are not telepaths, and we decline the invitation to guess what

the district court would have done with its discretion. In any

event, the burden of demonstrating the harmlessness of any

error is on the government, and it can not sustain that burden

given the district court’s statement that it would sentence on

the possession count if the government did not choose which

conviction to vacate. We will instead “ask the person who

knows the answer, the sentencing judge.” United States v.

Ameline, 409 F.3d 1073, 1079 (9th Cir. 2005) (en banc).

We also decline the government’s invitation to decide the

matter ourselves on the ground that “Davenport . . . was not

[about] giving defendants a get-out-of-a-receipt-convictionfree card.” In other words, the government would have us

believe that Congress intended that the more severe penalty

must apply where a defendant’s conduct violated two statutes

and the prosecutor decided the case warranted the more

severe charge. This position is foreclosed by the Supreme

Court’s decision in Ball and its progeny, in which the district

11284 UNITED STATES v. HECTOR
court was instructed to use its discretion even though one

count of conviction carried a greater penalty than the other.

See, e.g., Ball, 470 U.S. at 866 (noting that one statute carried

a five-year maximum while the other statute carried a twoyear maximum); Schales, 546 F.3d at 977-81 (involving a

receipt count with a five-year minimum and a twenty-year

maximum while the possession count had no minimum and a

ten-year maximum).

IV

[7] We reverse and remand for the district court to hold a

hearing and then to make a discretionary determination as to

which conviction should be vacated. 

REVERSED AND REMANDED.

UNITED STATES v. HECTOR 11285