United States v. Justin Werle ( 2017 )


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  •                            NOT FOR PUBLICATION                           FILED
                        UNITED STATES COURT OF APPEALS                       DEC 13 2017
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT
    
    UNITED STATES OF AMERICA,                       No.    16-30181
    
                    Plaintiff-Appellee,             D.C. No.
                                                    2:14-cr-00041-JLQ-1
     v.
    
    JUSTIN CURTIS WERLE,                            MEMORANDUM*
    
                    Defendant-Appellant.
    
                       Appeal from the United States District Court
                           for the Eastern District of Washington
                     Justin L. Quackenbush, District Judge, Presiding
    
                              Submitted December 5, 2017**
                                  Seattle, Washington
    
    Before: O’SCANNLAIN, TALLMAN, and WATFORD, Circuit Judges.
    
          Justin Curtis Werle appeals the district court’s imposition of consecutive
    
    sentences after he pled guilty to (1) unlawful possession of a firearm and
    
    ammunition, in violation of 18 U.S.C. § 922(g)(1), and (2) possession of an
    
    unregistered firearm, in violation of 26 U.S.C. § 5861(d). Because the facts are
    
    
          *
                 This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
          **
                 The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    known to the parties, we repeat them only as necessary to explain our decision.
    
                                              I
    
          Werle’s procedural attack on his consecutive sentences is without merit,
    
    because the district judge “adequately [] explain[ed] the sentence selected.” See
    
    United States v. Carty, 
    520 F.3d 984
    , 993 (9th Cir. 2008). The district judge
    
    determined that a total sentence of 140 months was appropriate and thoroughly
    
    explained his decision: he considered the sentencing factors in 18 U.S.C. §
    
    3553(a), emphasizing Werle’s criminal history, and concluded that a 140-month
    
    sentence “is sufficient but not greater than necessary” to ensure “adequate
    
    deterrence and . . . protect the public.” And the judge selected consecutive
    
    sentences in order to ensure that Werle was imprisoned for 140 months, because
    
    each of Werle’s counts carries a maximum sentence of 10 years.
    
                                             II
    
          Werle’s substantive attacks on his consecutive sentences also fail. 1
    
                                             A
    
          The district judge did not vindictively impose a harsher sentence to punish
    
    Werle for appealing his initial sentence. See Alabama v. Smith, 
    490 U.S. 794
    , 798–
    
    
    1
     Werle also argues that the district court erred in determining that his prior
    convictions for felony harassment under Washington Revised Code §
    9A.46.020(2)(b)(ii) were crimes of violence, thereby imposing a sentence
    enhancement. We address this argument in a contemporaneously filed per curiam
    opinion.
    
                                              2
    99 (1989) (holding that vindictive sentencing after appeal violates due process).
    
    The district judge lowered Werle’s total sentence after his appeal: he was initially
    
    sentenced to 180 months, but was sentenced to 140 months after the appeal. Thus,
    
    Werle does not benefit from any presumption of vindictiveness. See United States
    
    v. Hagler, 
    709 F.2d 578
    , 579 (9th Cir. 1983) (finding no vindictiveness without a
    
    net increase in punishment). And the mere imposition of consecutive, rather than
    
    concurrent, sentences after appeal raises no specter of vindictiveness, because the
    
    district judge properly utilized consecutive sentences in order to reach his selected
    
    “total punishment” of 140 months. See U.S.S.G. § 5G1.2(d).
    
                                              B
    
          Werle was not improperly punished twice for the same crime, because each
    
    of his two counts “requires proof of a fact which the other does not.” Blockburger
    
    v. United States, 
    284 U.S. 299
    , 304 (1932). A conviction under 18 U.S.C. §
    
    922(g)(1) requires proof that the defendant is a felon, while a conviction under 26
    
    U.S.C. § 5861(d) requires proof that the firearm is unregistered.
    
                                             III
    
          The judgment of the district court is AFFIRMED.
    
    
    
    
                                              3