NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-30164
Plaintiff - Appellee, D.C. No. 1:04-cr-00082-SEH-1
v.
MEMORANDUM*
BRIAN EDWARD BARKER,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted July 10, 2014
Portland, Oregon
Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.
Brian Edward Barker was found guilty of distribution of methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession with intent to
distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and
sentenced to a term of life imprisonment. After a successful 28 U.S.C. § 2255
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
motion, the district court resentenced Barker to a term of 262 months’
imprisonment, to run consecutively to a prior undischarged term of imprisonment.
Barker appeals his new sentence. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. Barker’s Sixth Amendment argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). “We have repeatedly held . . . that
Almendarez-Torres is binding unless it is expressly overruled by the Supreme
Court.” United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per
curiam); see also United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009).
This the Supreme Court has not done. See Alleyne v. United States, 133 S. Ct.
2151, 2160 n.1 (2013).
2. The law-of-the-case doctrine has no application here. When a district
court resentences a defendant, whether upon remand from an appellate court or, as
here, after the grant of a motion under § 2255, the court is free to reassess the
possible sentencing options and construct a new sentencing package that “reflect[s]
its considered judgment as to the punishment the defendant deserves for the crimes
of which he is still convicted.” United States v. Handa, 122 F.3d 690, 692 (9th
Cir. 1997); see also Pepper v. United States, 131 S. Ct. 1229, 1250–51 (2011).
Accordingly, the district court was entitled to reconsider whether Barker’s criminal
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conduct and personal characteristics warranted imposing his current sentence
consecutively to his prior undischarged sentence.
3. Resentencing Barker to serve his new term of imprisonment
consecutively to his prior undischarged sentence did not violate the prohibition
against double jeopardy. “The imposition of a new sentence constitutes a second
punishment only if [the defendant] had a legitimate expectation of finality of his
original sentence by the time the new sentence was imposed.” United States v.
Radmall, 340 F.3d 798, 800 (9th Cir. 2003). Where a defendant who has not
completed serving a valid portion of his sentence places the sentence in issue, such
as by filing a § 2255 motion, he has no legitimate expectation of finality in the
unchallenged portion of his sentence. See United States v. McClain, 133 F.3d
1191, 1194 (9th Cir. 1998); Handa, 122 F.3d at 692; United States v. Moreno-
Hernandez, 48 F.3d 1112, 1116 (9th Cir. 1995).
4. Nor did resentencing Barker to a term of imprisonment that runs
consecutively to a prior undischarged sentence violate due process. “Due process
of law . . . requires that vindictiveness against a defendant for having successfully
attacked his first conviction must play no part” in his resentencing. North
Carolina v. Pearce, 395 U.S. 711, 725 (1969), overruled on other grounds by
Alabama v. Smith, 490 U.S. 794 (1989). Here, however, no presumption of
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vindictiveness arises because Barker’s new sentence is not more severe overall
than his original sentence, see United States v. Horob, 735 F.3d 866, 870 (9th Cir.
2013), and because the judge on resentencing was not the same judge who imposed
Barker’s original sentence, see United States v. Curtin, 588 F.3d 993, 999 (9th Cir.
2009). Nor does Barker make a showing of actual vindictiveness. See Smith, 490
U.S. at 799–800; Horob, 735 F.3d at 871–72.
5. The district court did not commit procedural error in sentencing Barker to
serve his current sentence consecutively to a prior undischarged sentence.
U.S.S.G. § 5G1.3(b), which provides for concurrent sentences in certain
circumstances, does not apply here because Barker’s prior conviction was not used
to increase the offense level of the instant offenses. And, although the court did
not explicitly state the reason for imposing the new sentence consecutively to the
prior undischarged sentence, it did consider the sentencing factors set forth in 18
U.S.C. § 3553(a), specifically discussing Barker’s extensive criminal history, the
need for deterrence and incapacitation, the need for the sentence to reflect the
seriousness of the offense, and the available sentences. A sentencing explanation
which discussed the § 3553(a) factors is adequate even though it “[does] not
specifically justify the choice between concurrent and consecutive sentences.”
United States v. Fifield, 432 F.3d 1056, 1065 (9th Cir. 2005).
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6. The district court properly denied Barker’s request for credit for time
served. The double jeopardy clause of the Fifth Amendment requires that time
served on a vacated sentence be credited against any sentence subsequently
imposed for the same offense. See Pearce, 395 U.S. at 718–19. Moreover, 18
U.S.C. § 3585(b) provides that “[a] defendant shall be given credit toward the
service of a term of imprisonment for any time he has spent in official detention
prior to the date the sentence commences . . . as a result of the offense for which
the sentence was imposed.” We do not question Barker’s entitlement to receive
credit for time served, and the government conceded as much during oral
argument. However, case law makes clear that the Bureau of Prisons, not the
sentencing court, must calculate credit for time served in the first instance. See
United States v. Wilson, 503 U.S. 329, 334–35 (1992); United States v. Lualemaga,
280 F.3d 1260, 1265 (9th Cir. 2002).
AFFIRMED.
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