FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TOMMY HANSON,

Defendant-Appellant.

Nos. 18-30037

18-30038

D.C. Nos.

5:05-cr-00003-RRB

4:17-cr-00071-RRB

OPINION

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, District Judge, Presiding

Argued and Submitted August 7, 2019

Anchorage, Alaska

Filed August 28, 2019

Before: Richard C. Tallman, Sandra S. Ikuta,

and N. Randy Smith, Circuit Judges.

Opinion by Judge Tallman
2 UNITED STATES V. HANSON

SUMMARY*

Criminal Law

The panel affirmed the defendant’s 2017 conviction for 

receipt of child pornography, vacated the sentences imposed 

for that conviction and for a violation of supervised release, 

and remanded for resentencing on both matters.

The panel held that the district court did not abuse its 

discretion under Fed. R. Evid. 414 and 404(b) by admitting 

evidence related to the defendant’s 2007 child pornography 

conviction in his 2017 trial on similar charges.

The panel held that the district court violated the Ex Post 

Facto Clause when it sentenced the defendant to five years’ 

imprisonment under 18 U.S.C. § 3583(k) (2006) upon 

revoking his supervised release rather than sentencing him 

under the statutes as they existed in 2005 when he committed 

his first child pornography offense. Under those statutes, the 

maximum term of reimprisonment the district court could 

impose after revoking the defendant’s supervised release on 

his Class C felony conviction was two years.

Reviewing for plain error, the panel agreed with the 

government that the error was clear and obvious under 

governing law. The panel held that the record raises at least 

a reasonable probability that the district court would have 

imposed a lower total sentence if it had known that the 

maximum possible sentence on revocation of supervised 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. HANSON 3

release was two years rather than five, and that the error 

affected the defendant’s substantial rights. The panel 

concluded that the error seriously affected the fairness, 

integrity, or public reputation of the judicial proceedings, 

requiring a remedy.

Explaining that the “sentencing package” approach to 

this case is appropriate, the panel vacated the sentences for 

both the supervised release violation and the 2017 

conviction, and remanded for resentencing. The panel wrote 

that the district court is free to fashion an appropriate 

combined sentence on remand, provided it does not impose 

a sentence greater than two years on the supervision matter.

COUNSEL

John P. Balazs (argued), Sacramento, California, for 

Defendant-Appellant.

Robert A. Parker (argued), Attorney; Brian A. Benczkowski, 

Assistant Attorney General; Kyle F. Reardon and Adam 

Alexander, Assistant United States Attorneys; Andrea W. 

Hattan, Appellate Chief; Bryan Schroder, United States 

Attorney; Criminal Division, Appellate Section, United 

States Department of Justice, Washington, D.C.; for 

Plaintiff-Appellee.
4 UNITED STATES V. HANSON

OPINION

TALLMAN, Circuit Judge:

Appellant Tommy Hanson had served a prison term and 

was under supervised release overseen by a United States 

Probation Officer when he was again found in possession of 

child pornography. He was convicted by jury verdict and 

appeared for sentencing on both the 2017 substantive offense 

and for the violation of the terms of his supervised release 

triggered by his repeated criminal conduct. In these 

consolidated appeals he challenges the 15-year sentence 

imposed for receipt of child pornography, in violation of 

18 U.S.C. § 2252(a)(2), and the consecutive five-year prison 

sentence imposed under 18 U.S.C. § 3583(k), upon 

revocation of his supervised release. We conclude that the 

district court violated the Constitution’s Ex Post Facto

Clause when it sentenced Hanson under section 3583(k), and 

that this was plain error warranting vacatur of the sentence 

and a remand for a complete resentencing. We affirm 

Hanson’s 2017 conviction because the district court did not 

abuse its discretion by admitting evidence related to 

Hanson’s prior 2007 child pornography conviction under 

Federal Rules of Evidence 414 and 404(b).

Because Hanson was sentenced for his supervised 

release violation and his 2017 conviction in the same 

proceeding, both were based on the same underlying conduct 

found by a jury beyond a reasonable doubt, and because it 

appears the district court was attempting to fashion an 

appropriate “sentencing package” to account for both 

transgressions, we follow our “customary practice,” United 

States v. Christensen, 828 F.3d 763, 821 (9th Cir. 2015), and 

remand for resentencing on both the supervised release 

violation and the 2017 conviction.
UNITED STATES V. HANSON 5

I

In 2005, federal officers arrested Hanson upon his return 

from a trip overseas after his housesitter discovered child 

pornography on his computer. Hanson gave a statement to 

them in which he admitted to obtaining images of nude 

underage girls from two online newsgroups, 

alt.binarypictures.hussie and alt.binarynudism. Hanson had 

used an application called NewsBin to automatically 

download illicit images from the newsgroups. Hanson 

entered a conditional guilty plea in 2007 to one count of 

possession of child pornography, in violation of 18 U.S.C. 

§ 2252(a)(4)(B).1 He was sentenced to 96 months of 

imprisonment, followed by 60 months of supervised release.

Upon release from federal prison, Hanson began serving 

his term of supervised release in June 2012. In October 

2016, during a routine inspection of the cabin where Hanson 

was living, his federal probation officer found Hanson with 

a laptop, external hard drive, and smartphone in violation of 

the terms of his supervised release. Hanson admitted the 

laptop and hard drive were his, but denied that they 

contained any inappropriate images or content. The 

probation officer seized the devices and provided them to the 

FBI for forensic analysis. Eventually, investigators 

discovered a very large collection of pornography and child 

pornography on the laptop and hard drive.2

 Both devices 

1 Hanson appealed the denial of his motion to suppress and motion 

to withdraw his guilty plea for ineffective assistance of counsel, as well 

as the length of his sentence. We affirmed. See United States v. Hanson, 

357 F. App’x 93, 93–94 (9th Cir. 2009).

2 Federal investigators tagged 6,104 images of child pornography on 

the hard drive and 138 images of child pornography on the laptop as a 
6 UNITED STATES V. HANSON

also contained copies of the NewsBin application and a 

similar program called News Rover.

On May 18, 2017, his probation officer filed a petition 

recommending revocation of Hanson’s supervised release, 

and a month later, a federal grand jury charged Hanson with 

receipt and possession of child pornography. Both the 

petition and the indictment stemmed from the material found 

on Hanson’s seized electronic devices. After a three-day 

trial, a jury convicted Hanson of receipt of child 

pornography. Hanson agreed to combine the disposition of 

his supervised release revocation proceeding with the 

sentencing in his criminal case.

In its presentence report for Hanson’s 2017 conviction 

(the “criminal matter” or “criminal conviction”), the 

probation office noted that the statutory minimum sentence 

for Hanson’s second child pornography conviction was 

15 years under 18 U.S.C. § 2252(b)(1). Probation calculated 

an advisory sentencing range of 210 to 262 months for the 

offense and recommended the statutory mandatory 

minimum sentence of 15 years, i.e., 180 months. To redress 

the breach of the terms of supervised release (the 

“supervision matter”), the probation office informed the 

court that 18 U.S.C. § 3583(k) required a minimum term of 

imprisonment of five years,3 and further recommended that 

the sentence be imposed consecutively to the term imposed 

for Hanson’s 2017 conviction. At the combined sentencing 

proceeding, the district court accepted these 

representative sample of the larger collection of child sexual exploitation 

images found on the devices.

3 It was incorrect to apply section 3583(k) to Hanson’s case, as will 

be further discussed below.
UNITED STATES V. HANSON 7

recommendations. As a result, the court understood—

incorrectly, as it turned out—that it could not impose a total 

of less than 20 years of imprisonment unless it chose to run 

the two sentences concurrently rather than consecutively.

During the proceeding, counsel for the government 

requested a 20-year sentence for the 2017 conviction 

consecutive to “whatever sentence the Court imposes on the 

supervision matter,” and asked if the court wished the 

government “to address the supervision matter as well.” The 

court responded: “Yes. I would like to know what you think 

the entire sentence should be.” Government counsel stated: 

“My recommendation is 25 years composite, so the 20 years 

on the trial case, consecutive to the five-year minimum term 

under 3583(k) on the supervised release violation,” noting 

that it was “appropriate to impose some time consecutive 

between the supervised release violation and the sentence in 

this case, because there are two different interests at play.”

In imposing the sentence, the district court said the 

following:

Here it is significant that the conduct of 

conviction was the same as the earlier 

conduct, which shows a pattern of conduct 

that was undeterred by years of prison, 

significant time of sexual abuse rehabilitation 

opportunities, all of which you ignored, none 

of which you cooperated with, and then 

you’re back doing the same thing in a way 

that you’re trying to hide your conduct. You 

knew what you were doing was wrong and 

yet you continued to do it.

. . .
8 UNITED STATES V. HANSON

That’s what leads me to think that when 

Congress said that someone in your situation 

should serve at least 15 years, I think that’s 

reasonable, because we’re trying to protect 

the public.

This is unique to me to have someone who 

commits the crime, is sentenced for it, gets 

out of jail and then commits the same crime 

again, and then we have to kind of figure out 

how the two crimes mesh when in a way 

you’re being sentenced for very, very similar 

conduct.

I think, you know, that looking at the two 

cases, I think a 20-year sentence is sufficient, 

but not greater than necessary to satisfy the 

sentencing goals.

The way I get there, because I have to follow 

the legal framework, is in the first case . . . I 

think that I’ll accept the recommendation and 

would sentence you to the 180 months there, 

and then add five years in the second case, 

which brings me to 20 years.

I think my addition is correct. 180, that’s 

15 years, plus 60 is 20 years. I think that’s a 

fair sentence for someone, given your age, 

given the fact you’re already 54.

In closing, the court articulated the necessary findings in 

support of the supervised release violation and revocation 

sentence. It concluded that Hanson “absolutely” possessed 

child pornography in violation of his terms of supervised 
UNITED STATES V. HANSON 9

release “based on the jury verdict.” Judgments imposing 

consecutive sentences totaling 20 years were separately 

entered in the supervision matter and in the criminal matter, 

and Hanson timely appealed from both judgments.

II

Before we reach the sentencing issues in this case, we 

first address whether the district court erred in allowing the 

jury to consider evidence of Hanson’s 2007 guilty-plea 

conviction for possession of child pornography during his 

2017 trial on similar charges. We conclude that there was 

no error, because the district court did not abuse its 

discretion in admitting limited evidence of the prior 

conviction under Federal Rules of Evidence 414 and 404(b). 

See United States v. Martinez-Rodriguez, 472 F.3d 1087, 

1091 (9th Cir. 2007) (a district court’s evidentiary rulings 

are reviewed for abuse of discretion).

As we have previously explained, before 1994, when 

Federal Rules of Evidence 413 through 415 were passed, 

admission of a defendant’s prior crimes or acts was governed 

by Rule 404(b). See United States v. LeMay, 260 F.3d 1018, 

1024 (9th Cir. 2001). Under Rule 404(b)(1), “[e]vidence of 

a crime, wrong, or other act is not admissible to prove a 

person’s character in order to show that on a particular 

occasion the person acted in accordance with the character.” 

Such evidence may be admissible, however, to prove 

“motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake, or lack of accident.” Fed. R. 

Evid. 404(b)(2).

Rule 414 dramatically changed this rule with respect to 

child molestation cases, providing: “In a criminal case in 

which a defendant is accused of child molestation, the court 

may admit evidence that the defendant committed any other 
10 UNITED STATES V. HANSON

child molestation. The evidence may be considered on any 

matter to which it is relevant.” Fed. R. Evid. 414(a). “Child 

molestation” is defined as including crimes under 18 U.S.C. 

Chapter 110, see Fed. R. Evid. 414(d)(2)(B), which includes 

the receipt and possession of child pornography under 

18 U.S.C. § 2252(a). We have held that Rule 414 is 

constitutional but have also held that courts considering the 

admissibility of evidence under that rule must still apply 

Rule 403’s balancing test to that evidence. See LeMay, 260 

F.3d at 1026–27; see also Fed. R. Evid. 403 (a court “may 

exclude relevant evidence if its probative value is 

substantially outweighed by a danger of one or more of the 

following: unfair prejudice, confusing the issues, misleading 

the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence”).

In determining whether evidence of Hanson’s prior 

conviction for possession of child pornography was 

admissible under Rule 414, the district court was required to 

consider:

(1) the similarity of the prior acts to the acts 

charged, (2) the closeness in time of the prior 

acts to the acts charged, (3) the frequency of 

the prior acts, (4) the presence or lack of 

intervening circumstances, and (5) the 

necessity of the evidence beyond the 

testimonies already offered at trial.

LeMay, 260 F.3d at 1026–28 (internal quotations omitted). 

It properly did so here. Specifically, the court observed that 

Hanson’s 2007 conviction and the 2017 charges were similar 
UNITED STATES V. HANSON 11

and were relatively close in time.4 See id. at 1028–29 

(concluding that the crimes were “very similar” and that the 

passage of eleven years did “not render the decision to admit 

relevant evidence of similar prior acts an abuse of 

discretion”). And, as the government argued to the trial 

court in its notice of intent to offer evidence pursuant to Rule 

414, the evidence was helpful to prove that Hanson 

“knowingly received” and “knowingly possessed” child 

pornography images—i.e., the mens rea of the charged 

crimes. Under LeMay, this is sufficient. See id. at 1029 

(“Prior acts evidence need not be absolutely necessary to the 

prosecution’s case in order to be introduced; it must simply 

be helpful or practically necessary.”).

The district court also ruled that, even if Rule 414 did not 

apply, evidence of Hanson’s prior conviction was also 

admissible under Rule 404(b) because it “help[ed] illustrate 

how the events herein unfolded” and was “relevant to 

establish plan, motive, knowledge, intent, and/or absen[ce] 

of accident or mistake.” The test for admitting such 

evidence is whether: “1) it tends to prove a material fact; 

2) the prior act is not too remote in time; 3) the evidence is 

sufficient to support a finding that the defendant committed 

the act; and 4) where knowledge and intent are at issue, the 

act is similar to that charged.” United States v. Tsinnijinnie, 

91 F.3d 1285, 1288–89 (9th Cir. 1996). Those factors are 

met here. Indeed, Hanson’s main defense at trial—as the 

government had predicted—was that he accidentally 

installed a backup from an old computer and did not know it 

included pornography. Evidence that Hanson previously 

confessed to using NewsBin to download images of nude 

underage girls from online newsgroups helps to refute this 

4 We note that Hanson spent seven years of this intervening period

in prison, presumably unable to download child pornography.
12 UNITED STATES V. HANSON

defense because it tends to prove that he acted intentionally 

in this case, once again using NewsBin and a similar 

application to download new images from similar 

newsgroups.

Nor was the prior conviction evidence actually 

introduced at trial overly prejudicial under Rule 403. In 

addition to a redacted copy of the judgment shown to the jury 

in 2017, the government introduced one paragraph from the 

2007 presentence report describing Hanson’s admission to 

using NewsBin to download images from specific 

newsgroups. A limiting instruction was immediately given 

and was repeated before the jury retired to deliberate.5 We 

have previously upheld the introduction of this kind of 

“sanitized record” when followed immediately by a limiting 

instruction. See United States v. Sheldon, 755 F.3d 1047, 

1050–51 (9th Cir. 2014). On this record, the district court 

did not abuse its discretion in admitting evidence of 

Hanson’s prior conviction under Rules 414 and 404(b).

III

We turn now to the thornier issues this case presents: 

namely, whether the district court plainly erred when it 

sentenced Hanson to five years’ imprisonment under section 

3583(k) upon revoking his supervised release, in violation of 

the Ex Post Facto Clause, and, if so, the proper remedy. We 

5 Further testimony about the conviction was elicited by the 

government only during its cross-examination of Hanson after he 

decided to take the stand in his own defense. Hanson has not challenged 

the district court’s allowance of that line of cross-examination. See

Consolidated Brief of Appellant at 28 (“The contested evidence here 

consisted of the judgment from Hanson’s [2007] case and admissions 

from the presentence report that he made regarding the offense 

conduct.”).
UNITED STATES V. HANSON 13

hold that the district court committed plain error and that 

both of Hanson’s sentences must be vacated and the case 

remanded for a full resentencing on both the supervision 

matter and the criminal matter.

A

Article I of the Constitution of the United States provides 

that neither Congress nor any state shall pass any ex post 

facto law. U.S. Const. art. I, § 9, cl. 3, art. I, § 10, cl. 1.

An ex post facto law is not simply one that 

makes criminal an act that was lawful at the 

time it was committed, or a law that increases 

a sentence following the commission of the 

act for which punishment is imposed. The ex 

post facto provision applies to a wide range 

of changes affecting trial procedures and the 

mechanics of punishment.

United States v. Paskow, 11 F.3d 873, 876 (9th Cir. 1993). 

We have held that the Ex Post Facto Clause is violated 

“when a statutory amendment that increases a penalty to be 

imposed upon the revocation of supervised release is applied 

in a case in which the underlying offense was committed 

before the amendment was adopted but the conduct that led 

to revocation of supervised release occurred afterwards.” Id.

at 875; see also Johnson v. United States, 529 U.S. 694, 699–

701 (2000) (noting that retroactive application of a statute 

that “raises the penalty” upon revocation of supervised 

release “from whatever the law provided” when the 

underlying offense was committed is at odds with the Ex 

Post Facto Clause).

Yet that is precisely what occurred here. Hanson 

committed his first child pornography offense in 2005. At 
14 UNITED STATES V. HANSON

that time, federal law provided that, upon revocation of a 

defendant’s supervised release, the district court could 

“require the defendant to serve in prison all or part” of his 

term of supervised release “without credit for time 

previously served on postrelease supervision.” 18 U.S.C. 

§ 3583(e)(3) (2005). The maximum possible term of 

reimprisonment, however, depended upon the classification 

of the underlying “offense that resulted in the term of 

supervised release,” id., which in Hanson’s case was a Class 

C felony, see 18 U.S.C. § 3559(a)(3) (2005). When the 

district court revoked Hanson’s supervised release in 2017, 

it was required to apply the statutes as they existed in 2005—

as a result, the maximum term of reimprisonment it could 

impose upon Hanson after revoking his supervised release 

on his Class C felony conviction was two years. See

18 U.S.C. § 3583(e)(3) (2005).

Instead, the district court applied Section 141(e)(2) of the 

Adam Walsh Child Protection and Safety Act, Pub. L. No. 

109-248, 120 Stat. 587, enacted in 2006. That provision, 

codified at 18 U.S.C. § 3583(k), requires revocation of 

supervised release and reimprisonment for “not less than 

5 years” for sex offenders who commit an additional sex 

offense (including a child pornography offense such as 

Hanson’s) while on supervised release. We do not fault the 

district court for its error; the probation office and counsel 

for the government both recommended the court apply 

section 3583(k), and Hanson himself did not object to its 

application on ex post facto grounds. Nevertheless, the fact 

remains that Hanson could not properly be sentenced to 

anything greater than two years of reimprisonment upon 

revocation of his supervised release for his original child 

pornography conviction. See 18 U.S.C. § 3583(e)(3) (2005); 

Paskow, 11 F.3d at 883.
UNITED STATES V. HANSON 15

Because Hanson did not object to his revocation sentence 

on ex post facto grounds below, we review for plain error. 

See United States v. Chea, 231 F.3d 531, 535 (9th Cir. 

2000).6 To warrant relief on plain error review, a defendant 

must show (1) error, that (2) was “clear or obvious, rather 

than subject to reasonable dispute,” (3) “affected [his] 

substantial rights, which in the ordinary case means . . . it 

affected the outcome of the district court proceedings,” and 

(4) “seriously affect[ed] the fairness, integrity or public 

reputation of judicial proceedings.” Puckett v. United States, 

556 U.S. 129, 135 (2009) (quotation marks omitted). In the 

case of sentencing errors, the third prong generally requires 

the defendant to show “a reasonable probability that he 

would have received a different sentence” absent the error. 

United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008). 

The probability of a different result must be “sufficient to 

undermine confidence in the outcome of the proceeding.” 

United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) 

(quotation marks omitted).

The government concedes that Hanson’s five-year 

revocation sentence under section 3583(k) violates the Ex 

Post Facto Clause.7 It also concedes that in light of Paskow, 

11 F.3d at 875, the error was clear and obvious under 

governing law, and that Hanson has therefore satisfied his 

6 We decline Hanson’s invitation to apply the “pure question of law” 

exception to plain error review in this case, because we conclude that 

Hanson is entitled to relief under the more stringent plain-error standard.

7 In Johnson, the Supreme Court held it was unnecessary to decide 

whether retroactive application of a statute violated the Ex Post Facto

Clause because the Court determined that Congress did not intend for the 

statute to apply retroactively. 529 U.S. at 702–03. Because the parties 

agree that the district court erred in applying section 3583(k), we need 

not reach this issue.
16 UNITED STATES V. HANSON

burden under the first two prongs of the plain error standard. 

We agree.

The government argues, however, that Hanson has not 

demonstrated a reasonable probability that he would have 

received a different sentence absent the error. According to 

the government, the district court’s remarks at the combined 

sentencing hearing show that the court concluded a 20-year 

sentence was the appropriate term when looking at Hanson’s 

characteristics and conduct as a whole, and that if the court 

had been aware that Hanson’s maximum revocation 

sentence was only two years, it simply would have imposed 

18 years for his 2017 criminal conviction.

While we acknowledge that the court’s remarks at the 

sentencing hearing demonstrate that it was concerned with 

fashioning an appropriate total sentence, it does not 

necessarily follow that, had the court understood that it could 

not impose more than two years on the supervision matter, it 

still would have sentenced Hanson to a total of 20 years. 

Notably, the court actually gave Hanson the lowest possible 

term of imprisonment under what it considered the 

applicable mandatory minimums.8

 Nor did the court make 

8 The only way the court could have gone lower was by running the 

sentences concurrently rather than consecutively. But, as the 

government noted during the hearing, concurrent sentences would not 

have appropriately accounted for the two different interests the court 

sought to achieve. See United States v. Miqbel, 444 F.3d 1173, 1181–82 

(9th Cir. 2006) (revocation sentences sanction a violator for his “breach 

of trust,” as distinct from the interest in “provid[ing] just punishment” 

and “promot[ing] respect for the law” that a court must consider when 

imposing a sentence upon conviction of a criminal offense). If the court 

had chosen to run the sentences concurrently, the practical effect would 

be that Hanson would have received no sanction for his breach of trust 

in repeating his criminal behavior while under supervised release from 

his first child pornography offense.
UNITED STATES V. HANSON 17

clear that it would have imposed the same 20-year sentence 

had it known that the maximum sentence for the supervised 

release violation was two years. Cf. United States v. MunozCamarena, 631 F.3d 1028, 1030 n.5 (9th Cir. 2011) (holding 

that an error in calculating the correct Guidelines range is 

harmless under various circumstances indicating that the 

court would have imposed the same term regardless of the 

error).

The record here raises at least a reasonable probability, 

which we find sufficient to undermine our confidence in the 

outcome of the proceeding, that the court would have 

imposed a lower total sentence if it had known that the 

maximum possible sentence on revocation of supervised 

release was two years rather than five. Cf. Molina-Martinez 

v. United States, 136 S. Ct. 1338, 1345 (2016) (“When a 

defendant is sentenced under an incorrect Guidelines 

range—whether or not the defendant’s ultimate sentence 

falls within the correct range—the error itself can, and most 

often will, be sufficient to show a reasonable probability of 

a different outcome absent the error.”). But see MunozCamarena, 631 F.3d at 1030 n.5 (“[H]armless error may 

result if the district court: (1) acknowledges that the correct 

Guidelines range is in dispute and performs his sentencing 

analysis twice, beginning with both the correct and incorrect 

range; (2) chooses a within-Guidelines sentence that falls 

within both the incorrect and the correct Guidelines range 

and explains the chosen sentence adequately; (3) imposes a 

statutory minimum or maximum and adequately explains 

why no additional or lesser term of imprisonment is 

necessary; or (4) performs the sentencing analysis with 

respect to an incorrect Guidelines range that overlaps 

substantially with a correct Guidelines range such that the 

explanation for the sentence imposed is sufficient even as to 

the correct range.”). On this record, we are satisfied that the 
18 UNITED STATES V. HANSON

district court’s error in applying section 3583(k) when 

calculating Hanson’s sentence affected his substantial rights 

as contemplated under the third prong of plain error review.

We are also satisfied that the fourth prong of plain error 

review is met. In Rosales-Mireles v. United States, the 

district court miscalculated the Guidelines range, and, as 

here, there was a reasonable likelihood that the defendant 

would have received a different sentence absent the error. 

138 S. Ct. 1897, 1905 (2018). The Supreme Court held that 

in those circumstances, the miscalculation “seriously 

affect[s] the fairness, integrity, or public reputation of 

judicial proceedings, and thus will warrant relief.” Id.

at 1903. “The risk of unnecessary deprivation of liberty 

particularly undermines the fairness, integrity, or public 

reputation of judicial proceedings in the context of a plain 

Guidelines error,” the Court reasoned, “because of the role 

the district court plays in calculating the range and the 

relative ease of correcting the error.” Id. at 1908.

The same can be said here, where the district court relied 

not on an incorrect calculation of the Guidelines range, but 

rather on the wrong statute entirely, and, as in RosalesMireles, there is a reasonable likelihood the defendant would 

have received a different sentence but for the error. When 

the district court relies on the wrong statute to sentence 

someone to three years longer than the maximum legal 

revocation sentence in violation of the Ex Post Facto Clause 

and there is a reasonable likelihood the defendant would 

have received a different sentence but for the error, the 

concerns the Court articulated in Rosales-Mireles are present 

and require a remedy even on plain error review. See id. 

(“[W]hat reasonable citizen wouldn’t bear a rightly 

diminished view of the judicial process and its integrity if 

courts refused to correct obvious errors of their own devise 
UNITED STATES V. HANSON 19

that threaten to require individuals to linger longer in federal 

prison than the law demands?”).

B

We are left with the question of what remedy is 

appropriate in this case. Hanson asks that we remand only 

for resentencing on the supervision matter. The government, 

pointing to “sentencing package” cases involving multicount 

convictions, asks us to remand for resentencing on both the 

supervision matter and the 2017 criminal conviction. The 

government’s approach is appropriate here, as it accords 

with our “customary practice.” See Christensen, 828 F.3d 

at 821.

“Sentencing package” cases “typically involve 

multicount indictments and a successful attack by a 

defendant on some but not all of the counts of conviction.” 

Greenlaw v. United States, 554 U.S. 237, 253 (2008). In 

such cases, an appeals court “may vacate the entire sentence 

on all counts so that, on remand, the trial court can 

reconfigure the sentencing plan to ensure that it remains 

adequate to satisfy the [18 U.S.C. § 3553(a)] sentencing 

factors.” Id. On remand in some of these cases, “trial courts 

have imposed a sentence on the remaining counts longer 

than the sentence originally imposed on those particular 

counts, but yielding an aggregate sentence no longer than the 

aggregate sentence initially imposed.” Id.

We have endorsed the “sentencing package” principle in 

numerous cases where a conviction on one or more counts 

was vacated but convictions on the remaining counts were 

affirmed. See, e.g., United States v. Davis, 854 F.3d 601, 

606 (9th Cir. 2017); Christensen, 828 F.3d at 821; United 

States v. Avila-Anguiano, 609 F.3d 1046, 1049 (9th Cir. 

2010); United States v. Ruiz-Alvarez, 211 F.3d 1181, 1184 
20 UNITED STATES V. HANSON

(9th Cir. 2000); United States v. Handa, 122 F.3d 690, 692 

(9th Cir. 1997). However, the parties have cited no 

published case from this circuit (nor have we uncovered 

one)9 addressing the specific circumstances present here: 

namely, where the sentence on a judgment of revocation of 

supervised release and the sentence on a count of criminal 

conviction, both based on the same underlying conduct, were 

calculated and imposed at the same sentencing proceeding 

but the revocation sentence was subsequently determined to 

be illegal.

Hanson contends that the usual practice in “sentencing 

package” cases should not be followed under these 

circumstances and the district court cannot resentence him 

on both his supervision matter and his criminal matter where 

only the former sentence has been invalidated. According to 

Hanson, he was sentenced in two separate cases during one 

proceeding simply as a matter of administrative efficiency, 

and the separate considerations governing the imposition of 

sanctions for violating supervised release, see Miqbel, 

444 F.3d at 1182, and punishment for criminal conduct mean 

that the court could not have been trying to impose a single, 

overall sentencing package.

Hanson’s position ignores what the district court said it 

was doing during the sentencing hearing. The court asked 

the parties to recommend a total sentence, and stated: “I 

9 Though not cited by either party, we are aware that at least one 

other circuit appears to have applied the sentencing packaging doctrine 

to a case where both a new sentence and a revocation sentence were 

imposed at the conclusion of a single sentencing proceeding. See United 

States v. Taylor, 628 F.3d 420, 422, 425 (7th Cir. 2010) (applying the 

sentencing packaging doctrine and vacating both sentences imposed “for 

bank robbery and for violating the terms of . . . supervised release 

relating to an earlier bank robbery conviction”).
UNITED STATES V. HANSON 21

think . . . that looking at the two cases, I think a 20-year 

sentence is sufficient, but not greater than necessary to 

satisfy the sentencing goals.” Thus, the record makes clear 

the court was trying to fashion a fair overall sentence for both 

the supervised release violation and the criminal conviction 

(albeit based on the same underlying conduct) 

notwithstanding the separate penological interests at play 

here. We see no reason that the district court could not have 

kept separate sentencing considerations in mind for the 

revocation sentence and the criminal sentence, despite 

fashioning an overall term of years in one sentencing 

proceeding. We are confident that the district court is able 

to walk and chew gum at the same time.

We have long adopted a “packaging metaphor,” so that 

when a sentencing package becomes “unbundled” due to a 

judicial determination that a conviction or sentence was 

invalid, the district court has the authority “to put together a 

new package reflecting its considered judgment as to the 

punishment the defendant deserve[d] for the crimes of which 

he [wa]s still convicted.” Ruiz-Alvarez, 211 F.3d at 1184–

85 (quoting United States v. McClain, 133 F.3d 1191, 1193 

(9th Cir. 1998)). Accordingly, when a defendant appeals a 

sentence, and the appellate court remands the case for further 

sentencing proceedings, we have “repeatedly held that this 

court has the authority to vacate all of the sentences imposed 

and to authorize the district court to begin the sentencing 

process afresh.” Handa, 122 F.3d at 692. As we explained, 

“[t]he metaphors of ‘package’ and ‘unbundling’ are 

attractive and appear to reflect the realities of sentencing.” 

Id. Although we have previously applied this packaging 

metaphor in cases where a defendant was convicted of more 

than one count of a multiple count indictment, “[n]o reason 

appears why the same metaphor should not be used,” id., to 
22 UNITED STATES V. HANSON

permit the district court to resentence Hanson on both the 

supervised release violation and the 2017 conviction.

Indeed, the packaging metaphor is particularly 

applicable here, given the district court’s approach of 

looking to the bottom line, the total number of years that 

Hanson would serve, in an attempt to “satisfy the sentencing 

goals.” See id. The court’s decision to give Hanson 15 years 

for the 2017 conviction was not made in a vacuum—it was 

made, in part, based on the mistaken belief that Hanson 

would serve five years on the supervision matter and thus 

20 years total. We see no reason that the district court should 

not have the opportunity, on remand, to “put together a new 

package reflecting its considered judgment as to the 

punishment” Hanson deserves for the crime of which he is 

still convicted and the supervised release violation of which 

he is also guilty. Id.

Moreover, Hanson’s violative conduct—receipt of child 

pornography—was found by a jury beyond a reasonable 

doubt during the trial that resulted in his 2017 criminal 

conviction rather than, as is more typical, by a judge based 

on a preponderance of the evidence at a revocation hearing 

after a defendant violates the terms and conditions of his 

supervised release by engaging in behavior that may not 

necessarily be illegal.10 But here, the supervised release 

10 Because a jury found that Hanson had committed the offense 

beyond a reasonable doubt, we need not consider the impact of United 

States v. Haymond, which held that the application of section 3583(k) 

was unconstitutional where there was an “absence of a jury’s finding [of 

proof] beyond a reasonable doubt.” 139 S. Ct. 2369, 2378 (2019). Nor 

need we reach Hanson’s argument that section 3583(k) is 

unconstitutional on its face. See Lyng v. Nw. Indian Cemetery Protective 

Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding 

principle of judicial restraint requires that courts avoid reaching 
UNITED STATES V. HANSON 23

violation and the 2017 criminal conviction are functionally 

equivalent to separate “counts” in a multicount conviction.

Accordingly, we vacate the sentences for both the 

supervised release violation and the underlying offense and 

remand for resentencing.11 We note that “the decision to 

restructure a defendant’s entire sentence when only one of 

the counts of conviction is found to be invalid is 

discretionary.” Troiano v. United States, 918 F.3d 1082, 

1086–87 (9th Cir. 2019). On remand, the district court may 

decide to simply reimpose Hanson’s 15-year sentence on his 

2017 criminal conviction, or it may decide to increase that 

sentence.12 What it cannot do, however, as explained above 

in Section III. A., is impose anything greater than two years 

of reimprisonment on the supervision matter without 

violating the Constitution. With this limitation in mind, the 

district court is in the best position to determine the 

appropriate total sentence to impose.

constitutional questions in advance of the necessity of deciding them.”). 

We express no opinion as to that issue.

11 As we conclude that the “sentencing package” principle can 

properly be applied here, we reject Hanson’s contention that the crossappeal rule prevents the district court from resentencing him on the 

criminal matter because the government did not file a cross-appeal of 

that sentence. Unbundling packaged sentences and remanding on all 

counts “is not at odds with the cross-appeal rule, which stops appellate 

judges from adding years to a defendant’s sentence on their own 

initiative.” Greenlaw, 554 U.S. at 254.

12 It must resentence, however, “in accordance with the due process 

considerations enunciated by the Supreme Court in North Carolina v. 

Pearce,” United States v. Jenkins, 884 F.2d 433, 441 (9th Cir. 1989), and 

Alabama v. Smith, 490 U.S. 794, 798–800 (1989).
24 UNITED STATES V. HANSON

CONCLUSION

We affirm Hanson’s 2017 conviction because the district 

court did not abuse its discretion by admitting evidence 

related to Hanson’s prior child pornography conviction 

under Federal Rules of Evidence 414 and 404(b). The 

district court plainly erred, however, when it sentenced 

Hanson to five years of reimprisonment under 18 U.S.C. 

§ 3583(k) in violation of the Ex Post Facto Clause. We 

vacate Hanson’s sentences on both the supervision matter 

and the 2017 criminal conviction and remand for 

resentencing. The district court is free to fashion an 

appropriate combined sentence on remand, provided it does 

not impose a sentence greater than two years on the 

supervision matter.

VACATED and REMANDED in part with 

instructions; AFFIRMED in part.