United States v. Lomow

61 F. App'x 370

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 1, 2003
• Docket: No. 02-10326; D.C. No. CR-98-40009-1-CW
• Status: Published

Opinions

MEMORANDUM

*

Defendant William Douglas Lomow appeals the sentence that he received on remand. We affirm.

1. Defendant’s main argument is that the district court misinterpreted our remand in the prior appeal, United States v. Lomow, 266 F.3d 1013 (9th Cir.2001). It did not.

In the prior appeal, we held that the district court had correctly sentenced Defendant to 72 months on the money-laundering conviction, id. at 1018; turning to the conspiracy count, we noted that the statutory maximum sentence was 60 months, not 72 months, and therefore vacated his “sentence on that count” so the district court could correct this mistake, id. at 1022. Again, in our summary, we stated that we were affirming the district court’s application of the guidelines to the money-laundering conviction but vacating “the sentence imposed on the conspiracy count.” Id. at 1023. Our tag line vacated only “in part” and remanded for “resentencing in accordance with the above instructions.” Id. Accordingly, the district court properly limited its action to resentencing Defendant to the 60-month statutory maximum on the conspiracy count, to run concurrently with the 72-month sentence for money laundering. See United States v. Matthews, 278 F.3d 880, 889 (9th Cir.) (en banc) (noting that we may limit the scope of the sentencing issue on remand), cert. denied, 535 U.S. 1120, 122 S.Ct. 2345, 153 L.Ed.2d 173 (2002).

2. Defendant also claims that the district court violated the “one-book” and “grouping” rules. Neither argument avails Defendant because he properly was resentenced on only one count in accordance with our remand. Additionally, any error in this regard was invited by Defendant’s specific request for relief in the first appeal. The sentence for money laundering is not subject to a backdoor second appeal.

3. Finally, Defendant argues that the district court erroneously held that it could not grant a downward departure for post-sentencing rehabilitation. Any error in this regard was harmless because the court said that, even if such a departure were allowed, the sentence would not fall below 60 months at all events.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.