Hermundson

MEMORANDUM **

Darrell Lee Hermundson appeals his sentence for kidnaping, imposed on resentencing that we ordered in his prior appeal. See United States v. Hermundson, No. 97-10497, 2000 WL 32063 (9th Cir. Jan.14, 2000) (mem). His sole contention is that the district court erred in departing upward to Criminal History Category IV on the ground that Hermundson’s prior criminal history was under-represented. We affirm.

Hermundson concedes that we approved an identical criminal history departure when we disposed of his prior appeal. The government does not contend that our pri- or ruling is the law of the case, and its position is appropriate because the present appeal is from an entirely new sentence. See United States v. Caterino, 29 F.3d 1390, 1395-96 (9th Cir.1994), overruled on other grounds, Witte v. United States, 515 U.S. 389 , 115 S.Ct. 2199 , 132 L.Ed.2d 351 (1995); United States v. Allen, 153 F.3d 1037, 1043 (9th Cir.1998). But the reasoning of our prior memorandum remains valid. Under-representation of Hermundson’s criminal history is a valid ground of departure. See U.S.S.G. § 4A1.3(a) (2000). And the district court did not abuse its discretion in finding that the…