Linder

MEMORANDUM **

Robert Newton Linder timely appeals his ninety-seven-month sentence, imposed after his guilty-plea conviction in the District of Hawaii for one count of knowingly and intentionally attempting to possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841 (a), 846. We have jurisdiction pursuant to 18 U.S.C. § 3742 (a) and 28 U.S.C. § 1291 , and we vacate Linder’s sentence and remand for resentencing.

1. Witte v. United States, 515 U.S. 389 , 115 S.Ct. 2199 , 132 L.Ed.2d 351 (1995), forecloses Linder’s argument that the district court erred in considering the cocaine for which Linder was punished in California as relevant conduct. It is well established that double jeopardy principles do not “bar a later prosecution or punishment for criminal activity where that activity has been considered at sentencing for a separate crime.” Id. at 398 , 115 S.Ct. 2199 (citing Williams v. Oklahoma, 358 U.S. 576 , 79 S.Ct. 421 , 3 L.Ed.2d 516 (1959)). Under Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), the conspiracy for which Linder was punished in California was a separate crime from the attempted possession…