                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4014


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ANDRE SMITH,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Florence. Cameron McGowan Currie, Senior District Judge. (4:96-cr-00312-CMC-2)


Submitted: March 30, 2018                                         Decided: May 7, 2018


Before NIEMEYER and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge.


Affirmed in part and dismissed in part by unpublished per curiam opinion.


Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston, South
Carolina, for Appellant. Beth Drake, United States Attorney, Jimmie Ewing, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Andre Smith appeals the 120-month sentence imposed after he successfully moved

to vacate his original sentence under 28 U.S.C. § 2255 (2012). Smith argues that, at

resentencing, the district court did not sufficiently credit him for time served while in

state custody, that his new sentence violates the Double Jeopardy Clause, and that the

court vindictively imposed the maximum sentence allowed by statute. For the reasons

that follow, we affirm in part and dismiss in part.

       In 1993, Smith and another person robbed a convenience store in South Carolina,

during which the other person shot and killed an employee of the store. Smith pleaded

guilty in state court to armed robbery and related charges, and was sentenced to 30 years’

imprisonment. Smith also pleaded guilty in federal court to being a convicted felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2012), and was

sentenced as an armed career criminal to 360 months’ imprisonment. 1 The district court

ran the federal sentence concurrently with Smith’s 30-year state sentence. 2

       Smith completed his state sentence some time in 2012 or 2013, at which point he

was transferred from state to federal custody. In 2016, following the Supreme Court’s

decision in Johnson v. United States, 135 S. Ct. 2551 (2015), Smith filed a § 2255 motion




       1
        Smith’s sentence consisted of a 402-month term of incarceration, minus a 42-
month credit for time spent in state custody.
       2
        We affirmed on direct appeal. United States v. Smith, No. 97-4482, 1998 WL
230824 (4th Cir. May 11, 1998) (unpublished).


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arguing that he no longer qualified as an armed career criminal. The Government agreed,

and the district court granted the motion and set a hearing for resentencing.

       Without the armed career criminal enhancement, Smith was subject to a maximum

term of 120 months’ imprisonment. 18 U.S.C. §§ 922(g)(1), 924(a)(2). At resentencing,

the district court explained that, had it known at the original sentencing hearing that the

statutory maximum would be capped at 120 months, it would have elected to impose the

maximum sentence consecutively to Smith’s then-undischarged state sentence. The court

based this conclusion on the length of its original sentence, which was slated to extend

well beyond the duration of the state sentence, and the fact that Smith was not convicted

of murder in state court. Accordingly, the district court selected a new sentence of 120

months, but recommended to the Bureau of Prisons (BOP) that Smith receive credit for

time served since entering federal custody.

       On appeal, 3 Smith claims that the district court did not adequately credit him for

time previously served.     First, he contends that, because his original sentence was

imposed concurrently to his 30-year state sentence, he had already served more than 120

months of federal time by 2007. Thus, according to Smith, he is entitled to immediate

release. Smith also asserts that, because he previously served 120 months on his original

federal sentence, the district court’s decision to impose an additional 120-month term for

the same conviction was vindictive and violates the Double Jeopardy Clause.


       3
        Although Smith’s appeal is untimely, the Government has not moved to dismiss,
and we discern no basis on which to sua sponte dismiss the appeal as untimely. See
United States v. Oliver, 878 F.3d 120, 122, 128-29 (4th Cir. 2017).


                                              3
        Pursuant to 18 U.S.C. § 3585(b) (2012), the Attorney General, not the district

court, is responsible for determining whether an inmate should receive credit for time

served prior to commencing a federal term of imprisonment. United States v. Wilson,

503 U.S. 329, 334 (1992). In addition, a district court’s sentencing recommendation is

not binding on the BOP, and thus is neither a final decision under 28 U.S.C. § 1291

(2012), nor a final sentence under 18 U.S.C. § 3742 (2012). United States v. Yousef, 327

F.3d 56, 165 (2d Cir. 2003). Thus, because the district court’s recommendation to the

BOP was “not part of [the] sentence and cannot be appealed,” United States v. Ceballos,

671 F.3d 852, 855 (9th Cir. 2011), we dismiss this part of Smith’s appeal for lack of

jurisdiction. 4

        Next, Smith contends that, at resentencing, the district court vindictively imposed

the statutory maximum sentence. “A defendant’s right to due process requires that there

be no vindictiveness against him for having chosen to exercise his constitutional rights.”

United States v. Perry, 335 F.3d 316, 323 (4th Cir. 2003) (brackets and internal quotation

marks omitted). While a presumption of vindictiveness is sometimes warranted, no such

presumption applies where the new sentence is shorter than the original sentence. United

States v. Susi, 674 F.3d 278, 286 (4th Cir. 2012). “If vindictiveness cannot be presumed,

the burden remains upon the defendant to prove actual vindictiveness.” United States v.

Ventura, 864 F.3d 301, 310 (4th Cir. 2017) (internal quotation marks omitted).

        4
        In any event, double jeopardy is not implicated where, as here, a defendant is
resentenced after obtaining vacatur of his original sentence. United States v. Olivares,
292 F.3d 196, 200 (4th Cir. 2002).


                                             4
       Here, because Smith’s 120-month sentence is shorter than his original 360-month

sentence, Smith enjoys no presumption of vindictiveness. Nevertheless, Smith argues

that the district court provided no reasoned basis for imposing the statutory maximum.

On the contrary, the court made clear its intention to fashion a sentence that appropriately

punished Smith for the murder underlying his state and federal convictions. Because

Smith “offers no evidence to suggest that the district court retaliated against him for

exercising his right to” collaterally attack his sentence, he has failed to demonstrate actual

vindictiveness. United States v. Kincaid, 964 F.2d 325, 328 (4th Cir. 1992).

       Accordingly, we affirm Smith’s sentence and dismiss for lack of jurisdiction the

appeal from the district court’s recommendation to the BOP. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

                                                                      AFFIRMED IN PART;
                                                                      DISMISSED IN PART




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