United States v. Horob

When a district court does not impose a more severe overall sentence on remand, the presumption of vindictiveness does not apply.

Defendant Todd Kenneth Horob was "convicted of false statements to a bank, bank fraud, wire fraud, money laundering, bankruptcy scheme to defraud, and aggravated identity theft" and was sentenced to 132 months. On appeal, the Ninth Circuit overturned the convictions for false statements to a bank and aggravated identity theft, which carried a 24-month consecutive sentence; the panel remanded for resentencing. On remand, the district court again sentenced Horob to 132 months by increasing the sentencing on his remaining convictions, explaining that in the first sentencing hearing the court had decreased the sentence because adding 24 months to be served consecutively for aggravated identity theft would have made the sentence “more than necessary as required under the law.” Horob appealed the district court’s imposition of the same sentence, contending that the district court acted vindictively in imposing the same total sentence on remand. On the second appeal, the panel held that "the presumption of vindictiveness does not apply when a district court does not impose a more severe sentence on remand, even when the vacated conviction carried a mandatory sentence." The panel noted that the district court had considered the overall sentence both at the first sentencing hearing and on remand. The panel also held that Horob “failed to show actual vindictiveness on the part of the district court.” AFFIRMED.