United States of America, Plaintiff-appellee, v. Anthony J. Yokley, Defendant-appellant, 17 F.3d 397 (9th Cir. 1994)

MEMORANDUM^** 

This second appeal after remand and resentencing presents a single issue: whether the district court complied with the judgment of this court. See Yokley v. U.S., Nos. 91-10149, 91-15741; 91-15622 (9th Cir. 11/16/92) (unpublished memorandum). The court did not comply with the remand. The sentence is vacated and remanded for resentencing.

The trial court's failure to observe the requirements of the remand, and of Fed. R. Crim. P. 32(c) (3(D) makes resentencing necessary. However, we find nothing in the record to prevent the reimposition of the same term of custody that was imposed in the sentence appealed from.

In this case, on resentencing, the court first stated, in attempted compliance with the rule, that it was not considering the disputed items in the presentence report. So far, so good. Instead of stopping at that point, when it had more or less complied with Rule 32, as explained in United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990), the court then proceeded to call attention to the four closely typed pages of the criminal history section of the presentence report. The court then made an unintelligible statement that could be understood as reflecting consideration of criminal history that the court had just said it would not consider. Under these circumstances, to avoid future litigation on this point, we VACATE and REMAND.