United States of America, Plaintiff-appellee, v. Ernest Bernard Moore, Defendant-appellant, 963 F.2d 381 (9th Cir. 1992)

MEMORANDUM^** 

Moore raises five issues on appeal, none of which requires reversal.

A. In the district court, Moore did not contend that the court should consider what he did after the original sentencing. In fact, Moore's counsel specifically requested that the court not take such matters into account. As such, Moore cannot now raise this argument. See United States v. Edwards, 800 F.2d 878, 884 (9th Cir. 1986) ("Absent exceptional circumstances, this court will not consider issues raised for the first time on appeal."). In any event, the court did not abuse its discretion; it sentenced Moore within the statutory limits. Furthermore, Moore likely would have been worse off if the district court had considered his post-sentencing activities given that Moore apparently had escaped from prison and falsified a credit card application during that time.

B. The government did not promise in the plea agreement to remain silent at sentencing. It agreed only that it would not recommend a specific term of imprisonment. Thus, its suggestion that the court order Moore not to apply for any more credit cards was not inconsistent with the terms of the plea agreement.

C. Moore's case does not fit within either of the exceptions to United States v. Broce, 488 U.S. 563, 574-76 (1989). Therefore, when Moore pled guilty he waived any argument based on the Double Jeopardy Clause.

D. Moore cannot now--on appeal--challenge the factual basis for his guilty plea. He should not have pled guilty if he wished to contest the facts underlying the offense.

E. We accept the district court's characterization of its prior fine. See United States v. O'Brien, 789 F.2d 1344, 1347-48 (9th Cir. 1986); United States v. Dickie, 752 F.2d 1398, 1400 (9th Cir. 1985). We thus find no vindictiveness: It is obviously not vindictive to impose the same fine as previously imposed. As to the conditions of probation the court added at the second sentencing, they do not support a finding of vindictiveness.

AFFIRMED.