United States v. Rivera, Enrique ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3615
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ENRIQUE RIVERA,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Southern District of Indiana, Evansville Division.
No. 3:98CR00017-001—Richard L. Young, Judge.
____________
ARGUED APRIL 15, 2003—DECIDED MAY 1, 2003
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Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,
Circuit Judges.
FLAUM, Chief Judge. In August 2000 Enrique Rivera
was convicted of conspiring to possess with the intent to
distribute cocaine and conspiring to commit money laun-
dering. He was originally sentenced to 293 months in
prison, but on appeal we reversed the drug conspiracy
conviction for lack of sufficient evidence and remanded
the case for resentencing. See United States v. Rivera, 273
F.3d 751 (7th Cir. 2001) (“Rivera I”). Now, Rivera appeals
his new sentence, claiming that it was imposed in viola-
tion of the Double Jeopardy and Due Process Clauses. We
affirm.
2 No. 02-3615
I. BACKGROUND
We assume familiarity with the facts set forth in our prior
opinion and will repeat only what is necessary for this
appeal. At Rivera’s original sentencing hearing, the dis-
trict court determined that the adjusted offense levels for
the money laundering count and the drug conspiracy count
were 27 and 35, respectively. The counts were grouped, so
the court used the higher offense level of 35, which, coupled
with a criminal history category of IV, yielded a guide-
lines range of 235 to 293 months. Finding a sentence at
the high end of the range to be appropriate, the court
imposed 293 months for the drug conspiracy conviction and
240 months for the money laundering conviction, to run
concurrently with each other and with a prior undis-
charged 262-month sentence that was imposed in Califor-
nia in 1999.
On remand, after we reversed the drug conspiracy
conviction, the district court left undisturbed its original
findings that the money laundering count carried an
adjusted offense level of 27 and that Rivera’s criminal
history category was IV. This resulted in a guidelines
range of 100 to 125 months. At the resentencing hearing,
Rivera urged the court to impose a 100-month sentence
and to run it concurrently with the prior undischarged
sentence in California:
[C]onsidering all the factors last time in determining
[that the sentences] should be concurrent, the only
thing that’s changed is that the Seventh Circuit has
reversed the drug conspiracy case. And I think now
to change and give him consecutive time, it seems to
be punishing him for pursuing his right to appeal and
for being successful on appeal. If it was reasonable
back in November of 2000 to give him concurrent time,
it’s reasonable now.
Rivera also informed the court that, though the pre-
sentence report indicated that the prior undischarged
No. 02-3615 3
term was 262-months long, “he actually received 151
months. I think somewhere along the line that was cor-
rected in the prior presentences.” The government dis-
puted whether the undischarged term had been reduced,
but the court ultimately found the dispute unimportant
to the sentencing determination. The court explained
that, regardless how long the undischarged sentence
might be, consecutive terms were necessary to adequately
punish Rivera for his “continuing pattern of drug activi-
ties and [to] protect the community from any further
activity in the sale of drugs and money laundering for quite
a significant period of time.” The court then imposed a
prison term of 120 months, to run consecutively to the
undischarged sentence. This ruling, assuming that the
prior sentence remains at 262 months, resulted in an
overall time of imprisonment of 382 months—89 months
longer than the time Rivera originally received.
II. DISCUSSION
Rivera challenges his sentence on three grounds. First,
he contends that the Double Jeopardy Clause “prohibits
the district court’s wholesale revamping of Rivera’s money
laundering sentence . . . because neither Rivera nor the
Government challenged it on appeal.” But as we have ex-
plained before, where a defendant is sentenced on multiple
counts, he has “no legitimate expectation of finality in
any discrete portion of the sentencing package after a
partially successful appeal.” United States v. Shue, 825
F.2d 1111, 1115 (7th Cir. 1987); see also United States v.
Smith, 103 F.3d 531, 535 (7th Cir. 1996) (no expectation
of finality “until action is taken with regard to the whole
sentence”). It is therefore well-settled that the Double
Jeopardy Clause does not bar the district court on remand
from unbundling the package and resentencing on the
remaining counts. See United States v. Noble, 299 F.3d 907,
4 No. 02-3615
910 (7th Cir. 2002); Shue, 825 F.2d at 1115; United States
v. Evans, 314 F.3d 329, 333 (8th Cir. 2002). Rivera’s
argument otherwise is meritless.
Also without support is Rivera’s contention that the
district court “exceeded the jurisdiction granted by the
remand for resentencing on the money laundering con-
spiracy.” Contrary to Rivera’s assertions, there is nothing
in our earlier opinion that imposed any limitations on
the district court’s ability to reconsider the sentencing
package as a whole. See generally Rivera I, 273 F.3d 751.
Rivera’s last claim, based on the Due Process Clause, is
that his new sentence raises a presumption of vindictive-
ness under North Carolina v. Pearce, 395 U.S. 711 (1969),
overruled on other grounds, Alabama v. Smith, 490 U.S.
794 (1989), because he received more prison time than he
did before his first, successful appeal. In response the
government points out that Rivera’s sentence on the money
laundering count was actually reduced from 240 months
to 120 months; this argument, however, overlooks the
fact that we follow the “aggregate package” approach when
analyzing Pearce claims. United States v. Mancari, 914
F.2d 1014, 1021-22 (7th Cir. 1990). Under this approach,
which is followed by a majority of circuits, see United States
v. Campbell, 106 F.3d 64, 68 (5th Cir. 1997) (collecting
cases), we compare the total original punishment to the
total punishment after resentencing in determining
whether the new sentence is more severe. See id.But in order to calculate Rivera’s total punishment
after resentencing, we must first know whether his prior
undischarged sentence has been reduced to 151 months
or whether it remains at 262 months. We are uncertain
why the district court thought this factual question to be
unimportant, given that the court’s purpose in choosing
between a concurrent or consecutive (or partially concur-
rent) sentence presumably should have been to effectuate
No. 02-3615 5
its original sentencing intent. Under U.S.S.G. § 5G1.3(c)
district courts have the ability to run sentences “concur-
rently, partially concurrently, or consecutively to [a] prior
undischarged term of imprisonment to achieve a reason-
able punishment for the instant offense.” The court here
determined that 293 months was “a reasonable punish-
ment” the first time around. We see no reason why that
should be any different on remand unless there were
changed circumstances, and both parties agree that there
were none.
None of this is of any import, however. At oral argument
the parties clarified that the prior undischarged sentence
has in fact been reduced to 151 months. This means that
Rivera’s total term of imprisonment is now 271 months—22
months shorter than his original sentence—so the Pearce
presumption does not apply. See Mancari, 914 F.2d at 1021-
22. And without the presumption, Rivera must show ac-
tual vindictiveness on the part of the sentencing court,
United States v. Feldman, 825 F.2d 124, 132 (7th Cir. 1987),
but he has made no attempt to do so. His due process
challenge to his sentence therefore fails.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-1-03