United States v. Robert J. Lincoln

Lincoln was convicted of driving under the influence of intoxicants on a federal enclave in Alaska in violation of the Assimi-lative Crimes Act [ 18 U.S.C. § 13 ], which incorporates the relevant state law. We reversed by Memorandum on January 3, 1977, 549 F.2d 809 , and remanded the original conviction because of the ineffective waiver of counsel. A second trial again resulted in conviction.

The sentence imposed was harsher than that which had been imposed after the first trial. It is the increase in sentence which is contested on appeal. Appellant asserts three reasons why the increase was invalid: (1) it violates double jeopardy; (2) it violates due process because the record does not disclose any reason for the increase; and (3) the trial judge abused his discretion by imposing the maximum possible sentence despite insufficient evidence to categorize appellant as the “worst possible offender.”

An increased sentence after a second trial does not violate double jeopardy. North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969). The due process question is more difficult, however, because Pearce requires that the judge’s reasons for an increase…