United States of America, Plaintiff-appellee, v. Peter A. Hagler, Defendant-appellant, 708 F.2d 354 (9th Cir. 1982)

Hagler was convicted of 13 counts of mail fraud. He was sentenced to one year in prison and a $1,000 fine on count 15, and placed on five-years probation on the other counts. On appeal, he contends and the government concedes that the convictions on five counts, including count 15, must be reversed because the mailings charged in those five counts were not in furtherance of the scheme to defraud.

We vacate the sentence and remand for dismissal of the five invalid counts and for resentencing of Hagler on the remaining counts. See United States v. Diogenes, 638 F.2d 125, 128 (9th Cir. 1981); Johnson v. United States, 619 F.2d 366, 368-69 (5th Cir. 1980); United States v. Clutterbuck, 445 F.2d 839 (9th Cir.), cert. denied, 404 U.S. 858, 92 S. Ct. 108, 30 L. Ed. 2d 100 (1971).

We do not decide the propriety of increasing Hagler's sentence on the valid counts. See McClain v. United States, 643 F.2d 911, 913-14 (2d Cir.), cert. denied, 452 U.S. 919, 101 S. Ct. 3057, 69 L. Ed. 2d 424 (1981). The district court on remand, after full briefing by the parties, should consider the double jeopardy ramifications of imposing an increased sentence. See United States v. Busic, 639 F.2d 940 (3d Cir.), cert. denied, 452 U.S. 918, 101 S. Ct. 3055, 69 L. Ed. 2d 422 (1981); see also North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

The sentence is vacated and the action is remanded to the district court for further proceedings consistent with this disposition.