                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 19 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-10239

              Plaintiff-Appellee,                D.C. No.
                                                 2:10-cr-00173-KJD-RJJ-1
 v.

BRETT COMBS,                                     MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                             Submitted June 15, 2018**
                              San Francisco, California

Before: MURPHY,*** PAEZ, and IKUTA, Circuit Judges.

      Brett Combs appeals his sentence of 63 months imprisonment, with 48

months consecutive to his Nevada state sentence, for possession of a firearm by a

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      At his May 24, 2017 resentencing, Combs received “no net increase in

punishment,” United States v. Horob, 735 F.3d 866, 870 (9th Cir. 2013) (per

curiam) (citation omitted), over his original sentence; rather, he received a shorter

overall sentence (63 months versus 115 months), with the same amount of time

running consecutive to his Nevada state sentence (48 months).1 Therefore, the

presumption of vindictiveness under North Carolina v. Pearce, 395 U.S. 711

(1969), limited on other grounds by Alabama v. Smith, 490 U.S. 794 (1989), does

not apply. Horob, 735 F.3d at 870.

      Because the district court’s comments at resentencing reflected a permissible

consideration of relevant factors, Combs did not demonstrate that the district court

was actually vindictive in imposing the sentence. The district court permissibly

interpreted Combs’s repeated requests for an ex parte hearing on his innocence, as

a “refusal to accept responsibility for his actions.” United States v. Plascencia-

Orozco, 852 F.3d 910, 928 (9th Cir. 2017); see also Horob, 735 F.3d at 871–72.

Further, the district court did not demonstrate vindictiveness by considering factors


      1
       Because the Sentencing Guidelines recommendation does not affect
whether Combs’s sentence is presumptively vindictive, we need not consider
whether the 2011 or 2016 Guidelines applied to his resentencing.
                                           2
on which it did not rely at Combs’s initial sentencing, because on resentencing, the

district court is “free to consider any matters relevant to sentencing . . . as if it were

sentencing de novo.” United States v. Matthews, 278 F.3d 880, 885–86 (9th Cir.

2002) (en banc).

       AFFIRMED.




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