Opinion
No. 07-30305.
Argued and Submitted December 9, 2008.
Filed December 15, 2008.
Marcia Kay Hurd, Esquire, Assistant U.S., Office of the U.S. Attorney, Billings, MT, for Plaintiff-Appellee.
Steven C. Babcock, Assistant Federal Public Defender, Federal Defenders of Montana, Billings, MT, for Defendant-Appellant.
Appeal from the United States District Court for the District of Montana, Richard F. Cebull, District Judge, Presiding. D.C. No. CR-06-00063-RFC.
Before: O'SCANNLAIN, GRABER and BYBEE, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
We vacate the district court's judgment and remand in light of United States v. Davenport, 519 F.3d 940 (9th Cir. 2008). On remand, the district court should vacate either Wiberg's conviction for receipt or his conviction for possession of child pornography, "allowing for it to be reinstated without prejudice if his other conviction should be overturned on direct or collateral review." Id. at 948.
Any further appeals in this case shall be assigned to this panel.