Unpublished Disposition, 859 F.2d 155 (9th Cir. 1988)

MEMORANDUM^** 

George Franklin Harless, a federal prisoner on probation, appeals pro se the district court's partial denial of his 28 U.S.C. § 2255 motion to vacate several criminal convictions. This court addresses the question whether the district court's failure to vacate one of his convictions violates the double jeopardy clause. We affirm.

FACTS

The government prosecuted Harless on eight criminal charges arising from four different bank loan applications. He was convicted of making false statements in loan applications under counts four, five, six and seven. 18 U.S.C. § 1014 (1982). He was also convicted of falsely representing a social security number in the same applications under counts nine, ten, eleven, and twelve. 42 U.S.C. § 408(g) (2) (1982).

The district court sentenced him to four concurrent two-year prison terms for counts nine through twelve and to five years probation, consecutive to the prison terms, for counts four through seven.

After Harless filed his Sec. 2255 motion to vacate the convictions, the government conceded that a double jeopardy violation might exist and filed its own motion to vacate. The district court vacated the convictions and sentences under counts five, six, seven, and nine. Harless had already served nine months of his prison term for count nine, one of the vacated counts.

DISCUSSION

Harless filed a timely appeal from the district court's order. Fed. R. App. P. 4(a) governs. See Rule 11 following 28 U.S.C. § 2255 (1982). Rule 4(a) gives Harless 60 days from entry of the order to appeal. Harless filed his notice of appeal within 60 days.

The double jeopardy clause protects against multiple punishments for the same offense. United States v. Gonzalez, 800 F.2d 895, 897 (9th Cir. 1986). The district court corrected any double jeopardy violation by vacating the conviction and sentence under count nine and allowing the parallel conviction and sentence under count four to stand. The court's order prevented multiple punishments for the same offense.

Harless had already served nine months of his sentence under counts nine, ten, eleven and twelve when the court vacated count nine. This does not raise a double jeopardy issue. He served that nine months based on valid convictions and sentences for counts ten, eleven, and twelve. He does not contest the legality of those convictions. The district court did not err by choosing to vacate count nine instead of count four.

AFFIRMED.