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 2019-08

United States v. Alex Medrano ( 2019 )


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  •                                                                             FILED
NOT FOR PUBLICATION
AUG 27 2019
UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                        No.   18-50168
Plaintiff-Appellee,                D.C. No. 2:14-cr-00556-R-1
v.
MEMORANDUM*
ALEX ROMERO MEDRANO, AKA
Dreamer,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted August 16, 2019**
Pasadena, California
Before: CALLAHAN and CHRISTEN, Circuit Judges, and CHEN,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
Alex Medrano pleaded guilty to distribution of methamphetamine, and was
originally sentenced to probation.1 The government appealed that sentence as
incompatible with the five-year statutory mandatory minimum sentence established
for his crime of conviction. We agreed with the government, and remanded for
resentencing “in accordance with the mandatory minimum[.]” United States v.
Medrano, 714 F. App’x 765, 766 (9th Cir. 2018). On remand, the district court
imposed a five-year term of imprisonment. Medrano now appeals his revised
custodial sentence. We have jurisdiction pursuant to
    28 U.S.C. § 1291
     and we
affirm.
Medrano cites United States v. Arrellano-Rios,
    799 F.2d 520
    , 523 (9th Cir.
1986), for the proposition that an increased sentence imposed after a defendant has
fully served a lawful sentence violates the Double Jeopardy Clause. Medrano
overlooks that his original sentence was not lawfully imposed, as we clearly
articulated in our memorandum disposition remanding this case for resentencing.
See Medrano, 714 F. App’x at 766. Our case law distinguishes an unlawful first
sentence from a lawful one, and the Double Jeopardy Clause is not implicated
when a lawful sentence is imposed after an unlawful sentence is vacated. See
1
Because the parties are familiar with the facts and arguments, we
recite them only as necessary to resolve Medrano’s appeal.
2
United States v. Kane,
    876 F.2d 734
    , 737 (9th Cir. 1989) (“Generally, a defendant
can acquire no expectation of finality in an illegal sentence, which remains subject
to modification.”); United States v. Edmonson,
    792 F.2d 1492
    , 1496 (9th Cir.
1986) (“There is no double jeopardy prohibition against correcting an illegal
sentence even if such correction increases the punishment.”). Likewise, we discern
no constitutional problem with the failure to credit non-custodial time against a
custodial sentence. Cf. Kennick v. Superior Ct.,
    736 F.2d 1277
    , 1281, 1283 (9th
Cir. 1984).
Medrano’s due process challenge also fails. Substantial, prejudicial
appellate delay can trigger due process concerns, United States v. Antoine,
    906 F.2d 1379
    , 1382 (9th Cir. 1990), but in this case the delay between Medrano’s first
sentence of probation and the completion of the government’s appeal was caused
in large part by Medrano’s repeated probation violations. In light of the fact that
the Bureau of Prisons has credited the six months Medrano served in custody for
his fourth probation violation against his five-year prison sentence, Medrano has
not shown that his right to due process was violated.2
AFFIRMED.
2
The government’s unopposed motion to supplement the record (Dkt.
No. 29) is granted.
3