United States v. Orantez

342 F. App'x 335

Opinion

MEMORANDUM

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Mark A. Orantez appeals from the 68-month sentence imposed upon resentenc-ing for his jury-conviction of conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(vii) and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Orantez contends that the district court’s imposition of a higher sentence upon resentencing must be considered “vindictive” and therefore violative of his due process rights. The record plainly reveals that on remand, the district court imposed a higher sentence because, among other things, Orantez was subject to a two-level sentencing enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). Because the district court’s reasons for imposing a higher sentence “affirmatively appear” in the record, Oran-tez failed to establish that the greater sentence was vindictive. See Alabama v. Smith, 490 U.S. 794, 798, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); see also United States v. Garcia-Guizar, 234 F.3d 483, 489-90 (9th Cir.2000).

AFFIRMED.

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