United States v. Bradly Nelson

371 F. App'x 762

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 18, 2010
• Docket: 09-10133
• Status: Unpublished

Opinion

MEMORANDUM *

Defendant Bradly Leo Nelson appeals his conviction and sentence for receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

The district court did not abuse its discretion in imposing Nelson’s federal sentence for child pornography to run partially consecutive to his state sentence for child molestation. The court correctly found that the state and federal convictions were based on different harms to different victims at different times, and thus did not result from the same course of conduct.

We also reject Nelson’s argument that the district court abused its discretion in imposing prepubescent victim, sadistic or masochistic conduct, and vulnerable victim sentencing enhancements. This claim is foreclosed by United States v. Holt, 510 F.3d 1007 (9th Cir.2007) and United States v. Wright, 373 F.3d 935 (9th Cir.2004).

Finally, the district court did not abuse its discretion in rejecting Nelson’s prose-cutorial misconduct claim, which was based on the government’s re-filing of his federal indictment after he was sentenced for state charges that resulted from the same investigation. Nelson has presented no evidence that there was an agreement not to re-file the federal charges or that the government acted in bad faith by doing so.

AFFIRMED.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.