Unpublished Disposition, 899 F.2d 20 (9th Cir. 1989)

MEMORANDUM^** 

Samuel Anthony Washington appeals the district court's denial of his motion to correct his sentence following resentencing. The district court resentenced Washington following a guilty plea to two counts of using counterfeit access devices, after he had successfully appealed his original conviction and sentence for three counts of using counterfeit access devices, in violation of 18 U.S.C. § 1029(a) (1), and one count of possessing counterfeit access devices, in violation of 18 U.S.C. § 1029(a) (3). Washington raises two issues on appeal regarding his resentencing. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

OVERVIEW

On September 29, 1986, following a guilty verdict, the district court sentenced Washington to nine years in prison for three counts of using counterfeit access devices and one count of possessing counterfeit access devices. On count two of the use counts, the district court sentenced Washington to six months in jail to run consecutive to the other counts, and suspended the rest of his sentence. Washington appealed his conviction and this court reversed and remanded for a new trial.

Following his successful appeal, Washington pleaded guilty to count two and another count of using counterfeit access devices. On January 19, 1989, the district court sentenced Washington to five years probation on condition that he 1) provide 1,500 hours of community service, and 2) report to the district court in person every 120 days. The district court also credited Washington for time served and suspended the balance of his sentence on both counts, and imposed a special assessment fee. On February 28, 1989, Washington moved to strike his conditions of probation and the penalty assessment. The district court struck the penalty assessment, but denied Washington's motion as to his conditions of probation.

* Harsher Sentence

Washington contends the district court erred in resentencing him by imposing added conditions of community service and reporting requirements. Washington argues that because the added conditions create a harsher sentence, they raise a presumption of judicial vindictiveness and thus violate due process.

A presumption of judicial vindictiveness arises if the defendant, after successfully challenging his conviction, receives a sentence that is harsher and unexplained by "objective information occurring after ... the original sentencing." North Carolina v. Pearce, 395 U.S. 711, 726 (1968). A presumption of judicial vindictiveness does not arise if the new sentence is less severe than the sentence originally imposed. United States v. Clutterbuck, 445 F.2d 839, 840 (9th Cir. 1971); Thurman v. United States, 423 F.2d 988, 990 (9th Cir. 1970).

Here, because the district court credited Washington with time served and because Washington had time remaining on his new prison sentence which the district court suspended, his new sentence was not more severe than his original sentence. See Thurman, 423 F.2d at 990 (new sentence "lenient" where original sentence imposed prison terms of twenty-five years concurrent with five years, and new sentence required defendant to consecutively serve five years in prison and five years probation). Because a presumption of vindictiveness arises only if the new sentence is harsher and unexplained, see Pearce, 395 U.S. at 726, and will not arise following the imposition of a more lenient sentence, see Thurman, 423 F.2d 990, the district court did not err by imposing community service and reporting requirements on Washington as conditions of probation.

II

Probation

Washington contends that because the district court, in imposing the new sentence, did not indicate when probation started, this court should construe the starting time of his probationary period to include the sixth months he served in jail pursuant to his original sentence. Because Washington did not raise this issue before the district court, we decline to consider this issue on appeal. See United States v. Cloud, 872 F.2d 846, 857 (9th Cir. 1989).

AFFIRMED.