Kiles
United States v. Kiles
Opinion
Lead Opinion
*63 MEMORANDUM **
Defendant Charles Kiles appeals his sentence following remand. Because Kiles’s new sentence of 262 months is lower than his prior sentence of 264 months, the presumption of vindictiveness under North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969), does not apply. See United States v. Bay, 820 F.2d 1511, 1513 (9th Cir.1987). In the absence of this presumption, Kiles would have to demonstrate actual vindictiveness by the sentencing judge, which he has not done. See Alabama v. Smith, 490 U.S. 794, 799-800 , 109 S.Ct. 2201 , 104 L.Ed.2d 865 (1989).
While Kiles’s appeal was pending, the Supreme Court decided Blakely v. Washington, — U.S.-, 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), and Kiles requested permission to file additional briefing to respond to this decision. In light of the Supreme Court’s subsequent decision in United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), we find additional briefing to be unnecessary and deny his motion. We, instead, construe Kiles’s motion as preserving a Booker challenge to his sentence; that is, that the sentencing judge enhanced the sen-' tence in reliance upon judge-made findings…