United States of America, Plaintiff-appellee, v. Robert James Miller, Defendant-appellant, 981 F.2d 1260 (9th Cir. 1992)

MEMORANDUM^** 

Robert Miller appeals the district court's denial of his Federal Rule of Criminal Procedure 35 motion to correct his sentence. He contends that the court (1) erroneously construed the motion as a 28 U.S.C. § 2255 petition; (2) improperly resentenced him on a mechanical basis; (3) exercised judicial vindictiveness in resentencing; and (4) coerced his plea by threatening to impose a harsher sentence on remand. We reject these contentions and we affirm.

DISCUSSION

We reject Miller's contention that the district court erred by construed his Rule 35 motion as a habeas petition. The court clearly has the authority to construe a pro se motion erroneously brought under Rule 35 as a petition for relief under section 2255. See United States v. Kohl, 972 F.2d 294, 296-97 (9th Cir. 1992); United States v. Eatinger, 902 F.2d 1383, 1385 (9th Cir. 1990) (per curiam). Construed as a habeas petition, Miller's notice of appeal in this case is timely. See Houston v. Lack, 487 U.S. 266, 276 (1988); Sudduth v. Gasper, 921 F.2d 206, 207 (9th Cir. 1980).

We also reject Miller's arguments that the district court's sentence on remand was mechanical, vindictive or coercive. The district court properly exercised its discretion when reimposing the original sentence by taking into consideration the presentence report, the prosecutor's recommendation, and the gravity of the offenses committed. See United States v. Meyers, 847 F.2d 1408, 1414 (9th Cir. 1988). The court noted that based on that information it would be "clearly contrary to the manifest public interest" to impose anything but the same sentence. The court thereby satisfied our directive on remand to "examine the propriety of the bargain struck in this particular case, and set forth on the record the reasons for its ultimate decision." United States v. Miller, 722 F.2d 562, 566 (9th Cir. 1983). We conclude that there is inadequate support in the record for Miller's claim that his sentence was vindictive, coercive or mechanically calculated.

AFFIRMED.