United States v. Schweitzer

32 F. App'x 926

Opinion

MEMORANDUM

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Scott Alan Schweitzer appeals the his 46-month sentence imposed following remand on direct criminal appeal. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we vacate and remand.

Schweitzer contends that the district court erred by exceeding the scope of this court’s remand order, and that the district court’s sentence on remand was vindictive. The government disputes Schweitzer’s contentions, but concedes that remand is necessary to allow the district court to state its reasons for its sentence. We agree that remand is necessary so that the district court may state clearly the reasons for the sentence imposed, and the guidelines calculations justifying the sentence. Accordingly, we vacate the sentence and remand for resentencing. See 18 U.S.C. § 3553(c); U.S.S.G. § 1B1.1. In view of this determination, we decline to reach appellant’s contentions that the scope of the remand order was exceeded, and that the sentence was vindictive.

On remand, the district court shall order the preparation of a new presentence report prior to resentencing. At sentencing, the district court shall clearly state and explain its guidelines calculations and the reasons for its sentence. If the sentence imposed on remand exceeds the 37-month sentence initially imposed, the district court shall explain its reasons for imposing the higher sentence. See, e.g., United States v. Garcia-Guizar, 234 F.3d 483, 489-90 (9th Cir.2000).

Schweitzer’s request that this case be assigned to a different district court judge on remand is denied. See United States v. Gray, 31 F.3d 1443, 1447 (9th Cir.1994) (per curiam).

VACATED AND REMANDED WITH INSTRUCTIONS.

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