IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 01-40438
Summary Calendar
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UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
GERBER FRANCISCO SURIANO-HERNANDEZ
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Brownsville
No. B-00-CR-103-1
_________________________________________________________________
December 21, 2001
Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Gerber Francisco Suriano-Hernandez, who
was convicted after pleading guilty to illegal reentry following
deportation in violation of 8 U.S.C. § 1326 (1999), appeals his
sentence for the second time. In his first appeal, we concluded
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
that the district court denied Suriano his right to allocution,
and we thus vacated his sentence of 46 months’ imprisonment——the
minimum imprisonment term of the 46-to-57-month range that the
district court found applicable under the U.S. Sentencing
Guidelines (“USSG”).1 On remand, after holding a sentencing
hearing at which Suriano was given the opportunity to speak in
mitigation of his punishment, the district court imposed a
sentence of 57 months’ imprisonment——the maximum of the
applicable USSG range.2
Suriano again appeals his sentence, arguing (1) that the
district court resentenced him vindictively in raising his term
of imprisonment from the minimum to the maximum of the applicable
USSG range and (2) that his sentence violates Apprendi v. New
Jersey, 530 U.S. 466 (2000). The government concedes error on
the vindictiveness ground. We conclude that Suriano’s Apprendi
claim was disposed of in the prior appeal, but we agree with the
parties that the district court’s increase of Suriano’s sentence
created a presumption of vindictiveness which was not rebutted on
this record. Thus we vacate Suriano’s sentence and remand for
resentencing.
1
The district court also sentenced Suriano to 3 years’
supervised release and imposed a $100 mandatory special
assessment.
2
The district court imposed the same term of supervised
release and mandatory special assessment.
2
In North Carolina v. Pearce, the Supreme Court held that a
defendant’s constitutional right to due process of law is
violated if a judge resentences the defendant to a harsher
penalty in retaliation for the defendant’s successful attack on
the original sentence. See 395 U.S. 711, 725 (1969).
Recognizing that such vindictiveness is inherently difficult to
prove, the Court established a presumption of vindictiveness in
cases such as the instant case, where a judge imposes a harsher
sentence after a defendant successfully challenges the original
sentence imposed by the same judge. See id. at 725 n.20, 726;
see also United States v. Resendez-Mendez, 251 F.3d 514, 517 (5th
Cir. 2001) (“[A] presumption of vindictiveness attaches any time
that a defendant receives a harsher sentence on resentencing by
the same judge who imposed the previous sentence.”); United
States v. Vontsteen, 950 F.2d 1086, 1089 n.2 (5th Cir. 1992) (en
banc) (holding that “the Pearce rule applies to a new sentence
imposed after appeal whether or not preceded by a new trial”).
To defeat the Pearce presumption of vindictiveness, a sentencing
judge must give affirmative, objective reasons for the higher
sentence based on events occurring after the first sentencing
“that may have thrown new light upon the defendant’s ‘life,
health, habits, conduct, and mental and moral propensities.’”
Pearce, 395 U.S. at 723 (quoting Williams v. New York, 337 U.S.
241, 245 (1949)). Specifically, the district court’s reasons
must be based on “either objective information newly acquired by
3
the court following the original sentencing or sentence-enhancing
occurrences post-dating the original sentencing.” Resendez-
Mendez, 251 F.3d at 518.
Suriano timely objected to the district court’s increase of
his sentence on remand from this court. We review de novo
whether a district court’s proffered reasons for imposing an
increased sentence after reversal or vacatur and remand are
sufficient to rebut the Pearce presumption of vindictiveness.
See United States v. Campbell, 106 F.3d 64, 66 (5th Cir. 1997);
see also Resendez-Mendez, 251 F.3d at 517 (“The great deference
we owe to district courts’ sentencing is erased by the Pearce
presumption when a harsher sentence is imposed on
resentencing.”). The facts relied on by a judge in imposing a
harsher sentence on resentencing must appear in the record, “so
that the constitutional legitimacy of the increased sentence may
be fully reviewed on appeal.” Pearce, 395 U.S. at 726.
In the instant case, the district court gave two reasons for
its decision to impose a harsher sentence on Suriano. First, the
district judge stated that the resentencing permitted him to
undertake a more careful analysis of the “particulars” of the
case. However, the district judge did not have any new
“particulars” before him on resentencing. The judge relied on
the same presentence report that he relied on in the original
sentencing, and no newly-acquired information or post-sentence
conduct was added to the record between the original sentencing
4
and the resentencing. Reevaluation of the same “particulars” of
a case that were in the record used for the original sentencing
is not a legitimate ground for imposing a harsher penalty on
resentencing. See Pearce, 395 U.S. at 723, 726.
Second, the district judge explained that a harsher sentence
was warranted because the resentencing provided him with “the
benefit of hearing from [Suriano],” which failed to “convince[]
[him] that [Suriano] is repentant.” In Resendez-Mendez, a
vindictive-sentencing case involving facts substantially similar
to those involved in the instant case, we made clear that “the
sentencer’s subjective evaluation of the sincerity of defendant’s
allocution is neither relevant to the question of vindictiveness
nor probative in dispelling it.” 251 F.3d at 519. We noted
further that in thus relying on a determination that a
defendant’s allocution is insincere to impose an increased
sentence, “[i]t is as though the court was requiring the
defendant’s allocution to justify not increasing the original
sentence, a purpose opposite from allocution’s opportunity to
seek a lesser sentence.” Id. at 518.
Because, as both parties agree, neither of the district
judge’s purported reasons for imposing a harsher sentence on
resentencing is an “objective reason . . . either occurring or
discovered after imposition of the original sentence,” we presume
that the district judge acted vindictively in meting out the
harsher sentence, a presumption which has not been rebutted. Id.
5
Accordingly, we vacate Suriano’s sentence and remand for
resentencing. Suriano has asked that we remand to a different
judge. We decline. We are confident that the district judge
will, after allocution and consideration of Suriano’s request for
a downward departure, impose a lawful sentence.
The sentence imposed on remand is VACATED and the case is
remanded for resentencing.
6