United States v. Levi Labuff

373 F. App'x 677

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 1, 2010
• Docket: 08-30423
• Status: Unpublished

Opinion

MEMORANDUM **

Levi Samuel LaBuff appeals from the 51-month consecutive sentence imposed upon a second remand for resentencing, following his jury-trial conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.

LaBuff contends that the district court acted vindictively by imposing a harsher aggregate sentence following his partially successful appeal. We previously vacated LaBuffs sentence and remanded for re-sentencing because the district court’s failure to provide any explanation for imposing a longer aggregate sentence triggered a presumption of vindictiveness that the government did not rebut. See United States v. LaBuff, 285 Fed.Appx. 503, 504 (9th Cir.2008). The reasons provided by the district court upon remand also do not adequately rebut the presumption of vindictiveness. See Wasman v. United States, 468 U.S. 559, 564-65, 572, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984); see also United States v. Rapal, 146 F.3d 661, 663-64 (9th Cir.1998).

Accordingly, we once again vacate La-Buffs sentence and remand for resentenc-ing consistent with our current and prior memorandum dispositions. We further order that the case be reassigned to a different district court judge. See United States v. Paul, 561 F.3d 970, 975 (9th Cir.2009).

SENTENCE VACATED; REMANDED FOR REASSIGNMENT AND RE-SENTENCING.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.