820 F.2d 1511 (9th Cir. 1987), 86-1089, United States v. Bay

Docket Nº:86-1089.
Citation:820 F.2d 1511
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thaeeb BAY, Defendant-Appellant.
Case Date:July 07, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1511

820 F.2d 1511 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thaeeb BAY, Defendant-Appellant.

No. 86-1089.

United States Court of Appeals, Ninth Circuit

July 7, 1987

Argued and Submitted Jan. 13, 1987.

Page 1512

Sanford Svetcov, San Francisco, Cal., for plaintiff-appellee.

Gregor D. Guy-Smith, San Francisco, Cal., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE, SKOPIL and CANBY, Circuit Judges.

WALLACE, Circuit Judge:

Bay appeals a 20 year sentence for unarmed robbery imposed after his retrial following his successful appeal of earlier convictions for this and two other crimes. Bay argues that the district court imposed a more severe sentence after the retrial without any justification. Bay also contends that the district court improperly instructed the jury. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

I

In 1983, Bay was convicted of two armed bank robberies and one unarmed bank robbery that had occurred between September 1982 and June 1983. The district court sentenced him to 20 years for one armed robbery, 10 years for the other, and imposed a suspended sentence with 5 years probation for the unarmed robbery. Because the court ordered all sentences to run consecutively, Bay received, in total, 30 years imprisonment plus 5 years probation. Bay appealed to this court and we remanded for a hearing on an evidentiary issue. United States v. Bay, 762 F.2d 1314 (9th Cir.1984). After the hearing, the district court granted Bay a new trial. This time a jury acquitted Bay of the two armed bank robberies and convicted him of the unarmed robbery. The district judge sentenced Bay to 20 years in prison.

II

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (Pearce ), the Court held that, to assure the absence of a retaliatory motivation, "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear." Id. at 726, 89 S.Ct.

Page 1513

at 726. Bay contends that the district court has increased his sentence after the retrial and that we must vacate this sentence because the court failed to state legitimate reasons on the record for imposing the harsher sentence. Before the Pearce presumption of a vindictive motivation arises, however, the second sentence imposed on a defendant must, in fact, be more severe than the first. Determining the proper method for calculating the severity of a sentence is an issue of law that we review de novo. Cf. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (dicta), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

We take our primary guidance on this issue from United States v. Hagler, 709 F.2d 578 (9th Cir.) (Hagler ), cert. denied, 464 U.S. 917, 104 S.Ct. 282, 78 L.Ed.2d 260 (1983). Following Hagler's conviction on 13 counts of credit card fraud, the district court sentenced him to one year in prison and a fine of $1,000 on one of the counts, gave him a suspended sentence conditioned on five years' probation as to the other 12 counts, and required him to pay $77,000 in restitution. Id. at 579. On appeal, we reversed his conviction on five of the counts, including the count upon which the prison term and fine had been given, and remanded for resentencing. The district court again imposed restitution, a one year prison sentence and $1,000 on one of the counts, and a suspended sentence and five years probation on the other counts. Hagler appealed the sentence. We held that, because "there is no net increase in his punishment," the Pearce presumption that he was vindictively sentenced does not arise. Id. (emphasis added).

Hagler dictates the outcome of this appeal. Bay did not receive a "net increase" in his sentence following the retrial. In fact, Bay's total sentence was reduced. Therefore here too, the Pearce presumption does not arise.

Bay argues, however, that in measuring the severity of his prior sentence, we must exclude any punishment given on the armed robbery counts for which he has now been acquitted. See United States v. Monaco, 702 F.2d 860, 885 (11th Cir.1983). Bay points out that as to the only count on which he was ultimately convicted, the unarmed bank robbery count, he did receive a more severe sentence after retrial. Therefore, Bay concludes, Pearce requires the district court to justify the increase.

Hagler has foreclosed this argument in this circuit, however. Although Hagler obtained a reversal on the...

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