concurring in the judgment.
I agree with the majority that even though Olivares had fully discharged the sentence imposed after his first trial and conviction, the Double Jeopardy Clause did not bar the magistrate judge from imposing a harsher sentence following Oli-vares’s retrial and reconviction. However, I reach this conclusion by applying the “legitimate expectation of finality” test introduced by the Supreme Court in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), and first applied by our court in United States v. Bello, 767 F.2d 1065 (4th Cir.1985). Unlike the majority, I do not read North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), as holding that the Double Jeopardy Clause is never implicated when a defendant is reconvicted and resentenced after his original conviction has been vacated. The two defendants in Pearce were in the early stages of their sentences when they succeeded in having their convictions set aside: one defendant was two and one-half years into a ten-year sentence, and the other was a few years into a twelve-to fifteen-year sentence. See id. at 713-14, 89 S.Ct. 2072. The Pearce Court was thus not presented with (and did not decide) the question of whether imposing a harsher sentence after the original sentence has been completely discharged violates the Double Jeopardy Clause. As a result, we can only determine whether Olivares’s harsher second sentence subjected him to multiple punishments for the same offense by asking if he “had a legitimate expectation of finality as to the severity of his [first] sentence.” Bello, 167 F.2d at 1070. Olivares wanted a second chance to gain an acquittal. To get that chance, he appealed to have his first judgment of conviction, which included his sentence, set aside. In choosing that course, Olivares had to understand that things could again go wrong at a second trial; if they did, he had no guarantee that his sentence would not be increased. In other words, by appealing his first judgment of conviction, Olivares “by his own hand[ ] defeated his expectation of finality [in the first sentence], and the Double Jeopardy Clause, which guards against Government oppression, does not reheve [him] from the consequences of his voluntary choice.” United States v. Silvers, 90 F.3d 95, 100 (4th Cir.1996) (citation and internal quotations omitted). I therefore concur in the judgment affirming the district court.