                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           APR 14 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 14-10357

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00477-JAM-1

 v.
                                                 MEMORANDUM*
DUKE NOTTINGHAM,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                            Submitted April 12, 2016**
                             San Francisco, California

Before: D.W. NELSON, O’SCANNLAIN, and TROTT, Circuit Judges.

      Duke Nottingham appeals the district court’s $15,860.59 restitution order on

remand. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.




        *
             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).
      Nottingham contends that we should apply a presumption of vindictiveness

to the increase in restitution. In North Carolina v. Pearce, 395 U.S. 711 (1969),

the Supreme Court concluded that due process “requires that vindictiveness against

a defendant for having successfully attacked his first conviction must play no part

in the sentence he receives after a new trial.” Id. at 725. Because the “existence of

a retaliatory motivation would, of course, be extremely difficult to prove in any

individual case,” the Court created a presumption of vindictiveness “whenever a

judge imposes a more severe sentence upon a defendant after a new trial,” and the

reasons for the enhancement do not “affirmatively appear” in the record. Id. at 725

& n.20; see Nulph v. Cook, 333 F.3d 1052, 1057 (9th Cir. 2003).

      The Supreme Court subsequently limited the applicability of Pearce. See

Nulph, 333 F.3d at 1057. The Court has clarified that a “presumption of

vindictiveness does not apply in every case where a convicted defendant receives a

higher sentence on retrial.” Alabama v. Smith, 490 U.S. 794, 799 (1989) (internal

quotation marks and alteration omitted). Instead, the Pearce presumption applies

when “there is a ‘reasonable likelihood’ that the increase in sentence is the product

of actual vindictiveness on the part of the sentencing authority.” Id. (citation

omitted). “Where there is no such reasonable likelihood, the burden remains upon

the defendant to prove actual vindictiveness.” Id. at 799–800.


                                           2
      Here, the presumption of vindictiveness does not apply.1 The district court

based its original restitution award of $7,500 per victim on the government’s

suggestion that such award was appropriate in light of other district court’s awards

and Nottingham’s contesting the charge at trial. In Nottingham’s prior appeal, we

rejected such calculations as arbitrary. Then, an intervening Supreme Court

decision2 clarified how to calculate such restitution awards. On remand, the

district court expressly applied the guidance from that intervening decision to

recalculate the award. Thus, the reasons for the slight increase in overall

restitution3 “affirmatively appear” in the record, see Pearce, 395 U.S. at 725, and

there is no “reasonable likelihood” that the increase in restitution is the product of

actual vindictiveness, see Smith, 490 U.S. at 799. Due process does not require a

presumption of vindictiveness when a district court shifts from an arbitrary

restitution award to an award expressly based on intervening Supreme Court

precedent.



      1
        We assume without deciding that the Pearce presumption could apply to
increases in restitution after a successful appeal.
      2
          Paroline v. United States, 134 S. Ct. 1710 (2014).
      3
        For one victim, Vicky, the restitution award decreased; for another, L.S., it
increased. Such changes are entirely consistent with utilizing a new methodology
for calculating the restitution awards.

                                           3
      Because the presumption does not apply, Nottingham must prove actual

vindictiveness. See id. at 799–800. He does not attempt to do so.

      AFFIRMED.




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