                                                                            FILED
                             NOT FOR PUBLICATION                             APR 01 2010

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No. 08-30423

               Plaintiff - Appellee,             D.C. No. 4:03-cr-00003-SEH

   v.
                                                 MEMORANDUM *
 LEVI SAMUEL LaBUFF,

               Defendant - Appellant.



                     Appeal from the United States District Court
                             for the District of Montana
                      Sam E. Haddon, District Judge, Presiding

                              Submitted March 16, 2010 **


Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Levi Samuel LaBuff appeals from the 51-month consecutive sentence

imposed upon a second remand for resentencing, following his jury-trial conviction


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

EF/Research
for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.

       LaBuff contends that the district court acted vindictively by imposing a

harsher aggregate sentence following his partially successful appeal. We previously

vacated LaBuff’s sentence and remanded for resentencing because the district

court’s failure to provide any explanation for imposing a longer aggregate sentence

triggered a presumption of vindictiveness that the government did not rebut.

See United States v. LaBuff, 285 Fed.Appx. 503, 504 (9th Cir. 2008). The reasons

provided by the district court upon remand also do not adequately rebut the

presumption of vindictiveness. See Wasman v. United States, 468 U.S. 559, 564-65,

572 (1984); see also United States v. Rapal, 146 F.3d 661, 663-64 (9th Cir. 1998).

       Accordingly, we once again vacate LaBuff’s sentence and remand for

resentencing consistent with our current and prior memorandum dispositions. We

further order that the case be reassigned to a different district court judge.

See United States v. Paul, 561 F.3d 970, 975 (9th Cir. 2009).

       SENTENCE VACATED; REMANDED FOR REASSIGNMENT AND

RESENTENCING.




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