Opinion
No. 08-30329.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed June 22, 2009.
Greg Nyhus, Office of the U.S. Attorney, Portland, OR, for Plaintiff-Appellee.
Michelle A. Ryan, Law Office of Michelle A. Ryan LLC, Portland, OR, for Defendant-Appellant.
Appeal from the United States District Court for the District of Oregon, James A. Redden, District Judge, Presiding. D.C. No. 3:03-CR-00496-JAR.
Before: PAEZ, TALLMAN, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Kevin Brooks McClinton appeals the 180-month sentence and five-year term of supervised release imposed upon resentencing following the partial grant of his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
McClinton contends that the district court lacked jurisdiction to conduct a new sentencing hearing and increase his sentence by adding a five-year term of supervised release. This contention lacks merit. See 28 U.S.C. § 2255; see also United States v. Hock, 172 F.3d 676, 680-81 (9th Cir. 1999) (stating that the district court has authority to resentence a defendant following a successful § 2255 motion).
McClinton also contends that his due process rights were violated because the district court punished him with a more severe sentence without stating its reasons for doing so on the record. There is no showing of judicial vindictiveness because the record reflects that the district court included a five-year term of supervised release as part of the original judgment that was vacated by the partial grant of McClinton's § 2255 motion. See United States v. Hagler, 709 F.2d 578, 579 (9th Cir. 1983).