Unpublished Disposition, 895 F.2d 1419 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1419 (9th Cir. 1989)

No. 89-10242.

United States Court of Appeals, Ninth Circuit.

Reginald Dean Still appeals from the district court's order denying his motion under Fed. R. Crim. P. 35 for a reduction of sentence.1  We affirm.

On May 14, 1986, a jury found Still guilty of attempted bank robbery and interstate transportation of a stolen vehicle. Just over two months later, the district court sentenced Still to a term of fifteen years imprisonment on the attempted bank robbery charge. The district court also imposed a suspended sentence on Still for the interstate transportation of a stolen vehicle charge and placed Still on probation for five years, to be served at the expiration of the sentence on the attempted bank robbery conviction.

On July 1, 1988, this court reversed Still's conviction for attempted bank robbery. United States v. Still, 850 F.2d 607 (9th Cir. 1988), cert. denied, 109 S. Ct. 1330 (1989). This court affirmed Still's conviction for interstate transportation of a stolen vehicle, however. Id. In remanding the case to the district court, we authorized the district court to resentence Still on the interstate transportation of a stolen vehicle charge. Id. On January 19, 1989, the district court resentenced Still to a five-year term of imprisonment and instructed that the sentence imposed run consecutively "to any other federal sentence." Since Still had been convicted and sentenced for a charge of attempted escape in the Central District of California in the interim, it is clear that Still's sentence for interstate transportation of a stolen vehicle was meant to run consecutive to his attempted escape sentence.

Still contends that the district court erred by resentencing him to five years imprisonment on the interstate transportation of a stolen vehicle charge. He suggests that the new sentence amounts to judicial vindictiveness in violation of his due process rights, citing North Carolina v. Pearce, 395 U.S. 711 (1969). We disagree.

Consistent with the authority given to us by Congress under 28 U.S.C. § 2106, we gave the district court a clear mandate to reconsider its sentence in light of our reversal of Still's attempted bank robbery conviction. See United States v. Hagler, 709 F.2d 578, 579 (9th Cir.), cert. denied, 464 U.S. 917 (1983). We recognized that "the district court judge attempted to structure a sentence of custody and probation based upon the two convictions." Still, 850 F.2d at 610. Since we reversed one of those convictions, it was only proper that "the district court ... be allowed to reconsider the sentencing on the stolen vehicle conviction." Id. (citation omitted).

Still's constitutional rights were not violated when the district court resentenced him. First, we have long recognized that " [c]onsecutive sentences are an appropriate mechanism for imposing a distinct punishment for each of two criminal acts." United States v. Lustig, 555 F.2d 751, 753 (9th Cir. 1977), cert. denied, 434 U.S. 1045 (1978).2  Next, there is no constitutional violation where the district court did not cause a net increase in Still's punishment when it resentenced him.3  See Hagler, 709 F.2d at 79. Finally, Still does not allege any facts suggesting that the district court engaged in any vindictiveness when it resentenced him. See id.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

The version of Fed. R. Crim. P. 35 applicable here is a former version applicable only to offenses committed prior to November 1, 1987

 2

Still's reliance upon United States v. Eastman, 758 F.2d 1315 (9th Cir. 1985), is misplaced. The instant case involves a federal sentence running consecutively to another federal sentence, whereas Eastman involves a federal sentence running consecutively to a state sentence. Eastman, therefore, raised preemption problems not present here

 3

The district court originally sentenced Still to fifteen years imprisonment for the attempted bank robbery conviction and five years probation for the interstate transportation of a stolen vehicle conviction. The resentencing for five years imprisonment on the interstate transportation of a stolen vehicle charge resulted in a net decrease in Still's overall sentence