United States v. Levi Labuff ( 2010 )

FILED
NOT FOR PUBLICATION APR 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30423
Plaintiff - Appellee, D.C. No. 4:03-cr-00003-SEH
v.
MEMORANDUM *
LEVI SAMUEL LaBUFF,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Levi Samuel LaBuff appeals from the 51-month consecutive sentence
imposed upon a second remand for resentencing, following his jury-trial conviction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
EF/Research
for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.
LaBuff contends that the district court acted vindictively by imposing a
harsher aggregate sentence following his partially successful appeal. We previously
vacated LaBuff’s sentence and remanded for resentencing because the district
court’s failure to provide any explanation for imposing a longer aggregate sentence
triggered a presumption of vindictiveness that the government did not rebut.
See United States v. LaBuff, 285 Fed.Appx. 503, 504 (9th Cir. 2008). The reasons
provided by the district court upon remand also do not adequately rebut the
presumption of vindictiveness. See Wasman v. United States, 468 U.S. 559, 564-65,
572 (1984); see also United States v. Rapal, 146 F.3d 661, 663-64 (9th Cir. 1998).
Accordingly, we once again vacate LaBuff’s sentence and remand for
resentencing consistent with our current and prior memorandum dispositions. We
further order that the case be reassigned to a different district court judge.
See United States v. Paul, 561 F.3d 970, 975 (9th Cir. 2009).
SENTENCE VACATED; REMANDED FOR REASSIGNMENT AND
RESENTENCING.
EF/Research 2 08-30423