
    UNITED STATES of America, Appellee, v. John SCOTT, Appellant.
    No. 10-4629-cr.
    United States Court of Appeals, Second Circuit.
    Sept. 29, 2011.
    Laurie S. Hershey, Manhasset, NY, for Appellant.
    Stephan J. Baczynski, Assistant United States Attorney for the Western District of New York (William J. Hochul, Jr., United States Attorney for the Western District of New York, on the brief), for Appellee.
    Present: ROSEMARY S. POOLER, B.D. PARKER, SUSAN L. CARNEY, Circuit Judges.
   SUMMARY ORDER

On February 22, 2010, Scott pleaded guilty to two counts of possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B). On October 15, 2010, Scott was sentenced by the United States District Court for the Western District of New York (Skretny, J.) to a term of 204 months’ imprisonment and lifetime supervised release. Scott is challenging his sentence based on his trial counsel’s failure to raise a policy challenge to the sentence pursuant to United States v. Dorvee, 616 F.3d 174 (2d Cir.2010). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

The government concedes in its brief that the district court committed an error in entering sentence against Scott. Scott entered a guilty plea to two counts of violating 18 U.S.C. § 2255(a)(5)(B). Each conviction carried a maximum sentence of 10 years’ imprisonment. In sentencing Scott to 17 years imprisonment, the district court erred in not allocating the sentence between the two counts of conviction. As the government concedes, Scott’s sentence was illegal and requires a remand for resentencing. Given that we are vacating and remanding, and given that our decision in Dorvee issued just shortly before the district court sentenced Scott, in the interest of justice we direct the district court to “exercise its discretion anew” on remand. We note that the district court will now have the benefit of our decisions in Dorvee and United States v. Tutty, 612 F.3d 128 (2d Cir.2010), and on remand, and after hearing from the parties, the district court should take note of the considerations detailed in those opinions.

Accordingly, the judgment of the district court hereby is VACATED and REMANDED.  