United States v. Fatima Peyton

353 F.3d 1080 UNITED STATES of America, Plaintiff-Appellee, v. Fatima PEYTON, Defendant-Appellant. No. 02-50482. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 8, 2003 — Pasadena, California. Filed December 31, 2003. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Angela M. Krueger, Federal Defenders of San Diego, San Diego, California, for the defendant-appellant. Steve Miller, Assistant United States Attorney, San Diego, California, C. Lam, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; Rudi M. Brewster, Senior District Judge, Presiding. D.C. No. CR-00-01478-TJW. Before: John T. NOONAN, Richard C. TALLMAN, and Johnnie B. RAWLINSON, Circuit Judges. OPINION Opinion by Judge TALLMAN; Dissent by Judge NOONAN. TALLMAN, Circuit Judge: 1 Fatima Peyton was tried and convicted of access device fraud in violation of 18 U.S.C. § 1029 (a)(1) and (2) and sentenced to 15 months imprisonment for her role in an identity theft ring. Following a successful appeal, in which we reversed six of the eight counts of conviction, Peyton was resentenced to 30 months. She now appeals the…

Opinion by Judge TALLMAN; Dissent by Judge NOONAN.

Fatima Peyton was tried and convicted of access device fraud in violation of 18 U.S.C. § 1029 (a)(1) and (2) and sentenced to 15 months imprisonment for her role in an identity theft ring. Following a successful appeal, in which we reversed six of the eight counts of conviction, Peyton was resentenced to 30 months. She now appeals the resentencing, asserting that: (1) the district judge acted vindictively by doubling her sentence; (2) the district court applied an improper evidentiary standard to evidence proffered in support of sentencing factors; and (3) insufficient evidence existed to apply the sentencing enhancements for accountable loss, obstruction of justice, and abuse of a position of trust.

We hold that the sentencing record does not rebut the presumption that the district judge acted in a vindictive manner by applying the obstruction of justice enhancement on resentencing after considering, but rejecting, this enhancement at the original sentencing. Accordingly, we vacate that part of Peyton’s sentence and remand again for resentencing without it. We affirm the district court’s rulings on all other claims.

I. Factual…

dissenting:

On remand to the district court after a successful appeal to this court, the district court doubled Peyton’s sentence. In disregard of the Supreme Court and our own circuit precedent, the court sustains a portion of this presumptively vindictive sentence.

Applying North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969) and Wasman v. United States, 468 U.S. 559 , 104 S.Ct. 3217 , 82 L.Ed.2d 424 (1984), we recently stated:

Nulph v. Cook, 333 F.3d 1052, 1057-58 (9th Cir.2003).

If Pearce is the law governing a habeas petition challenging a state sentence, it is a fortiori the law governing federal sentencing. See Wasman, 468 U.S. at 564-65, 569 , 104 S.Ct. 3217 . Pearce requires identifiable conduct by the defendant after the time of the original sentencing. No identifiable conduct by Fatima Peyton has occurred since her first sentencing. Therefore under Pearce the district court has acted vindictively. No more need be said.

The Apprendi confusion of the district judge has disappeared. This court claims that the Apprendi confusion was the only reason for his first sentence bearing on the loss. But, in the very passage quoted in the majority…