Opinion
No. 08-10439.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed August 14, 2009.
Gregory J. Fouratt, Esquire, Laura Fashing, Assistant U.S., U.S. Attorney's Office, Albuquerque, NM, for Plaintiff-Appellee.
Richard Madril, Esquire, Tucson, AZ, for Defendant-Appellant.
Appeal from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding. D.C. No. 4:06-CR-00945-CKJ.
Before: KLEINFELD, M. SMITH, and IKUTA, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Mark A. Orantez appeals from the 68-month sentence imposed upon resentencing for his jury-conviction of conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vii) and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Orantez contends that the district court's imposition of a higher sentence upon resentencing must be considered "vindictive" and therefore violative of his due process rights. The record plainly reveals that on remand, the district court imposed a higher sentence because, among other things, Orantez was subject to a two-level sentencing enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). Because the district court's reasons for imposing a higher sentence "affirmatively appear" in the record, Orantez failed to establish that the greater sentence was vindictive. See Alabama v. Smith, 490 U.S. 794, 798, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); see also United States v. Garcia-Guizar, 234 F.3d 483, 489-90 (9th Cir. 2000).