United States v. Victor Gonzalez Vazquez

MEMORANDUM

Victor Gonzalez Vazquez appeals the district court’s reimposition of a 144-month sentence (given a Guidelines range of 151-188 months) on remand following this court’s holding that the district court improperly considered Gonzalez Vazquez a criminal history category two in his first sentencing (thus leading to a Guidelines range of 210-262 months). See United States v. Gonzalez Vazquez, 719 F.3d 1086 (9th Cir.2013). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a), and we affirm.

We reject Gonzalez Vazquez’s argument that the district court’s second sentence was vindictive. The Pearce presumption of vindictiveness does not apply because the district court did not impose a higher sentence on remand. North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969); United States v. Horob, 735 F.3d 866, 870-71 (9th Cir.2013) (holding that the Pearce presumption does not apply where the district court reimposes a sentence of the same duration). Nor has Gonzalez Vazquez proffered any evidence of actual vindictiveness. Neither the fact that the district court reimposed the same sentence on remand nor the district court’s comment at Gonzalez…