               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                       ____________________

                           No. 01-40438

                         Summary Calendar
                       ____________________


     UNITED STATES OF AMERICA

                                    Plaintiff - Appellee

          v.



     GERBER FRANCISCO SURIANO-HERNANDEZ

                                    Defendant - Appellant


_________________________________________________________________

           Appeal from the United States District Court
        for the Southern District of Texas, Brownsville
                         No. B-00-CR-103-1
_________________________________________________________________
                         December 21, 2001
Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Gerber Francisco Suriano-Hernandez, who

was convicted after pleading guilty to illegal reentry following

deportation in violation of 8 U.S.C. § 1326 (1999), appeals his

sentence for the second time.   In his first appeal, we concluded


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
that the district court denied Suriano his right to allocution,

and we thus vacated his sentence of 46 months’ imprisonment——the

minimum imprisonment term of the 46-to-57-month range that the

district court found applicable under the U.S. Sentencing

Guidelines (“USSG”).1   On remand, after holding a sentencing

hearing at which Suriano was given the opportunity to speak in

mitigation of his punishment, the district court imposed a

sentence of 57 months’ imprisonment——the maximum of the

applicable USSG range.2

     Suriano again appeals his sentence, arguing (1) that the

district court resentenced him vindictively in raising his term

of imprisonment from the minimum to the maximum of the applicable

USSG range and (2) that his sentence violates Apprendi v. New

Jersey, 530 U.S. 466 (2000).    The government concedes error on

the vindictiveness ground.    We conclude that Suriano’s Apprendi

claim was disposed of in the prior appeal, but we agree with the

parties that the district court’s increase of Suriano’s sentence

created a presumption of vindictiveness which was not rebutted on

this record.    Thus we vacate Suriano’s sentence and remand for

resentencing.




     1
        The district court also sentenced Suriano to 3 years’
supervised release and imposed a $100 mandatory special
assessment.
     2
        The district court imposed the same term of supervised
release and mandatory special assessment.

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     In North Carolina v. Pearce, the Supreme Court held that a

defendant’s constitutional right to due process of law is

violated if a judge resentences the defendant to a harsher

penalty in retaliation for the defendant’s successful attack on

the original sentence.   See 395 U.S. 711, 725 (1969).

Recognizing that such vindictiveness is inherently difficult to

prove, the Court established a presumption of vindictiveness in

cases such as the instant case, where a judge imposes a harsher

sentence after a defendant successfully challenges the original

sentence imposed by the same judge.   See id. at 725 n.20, 726;

see also United States v. Resendez-Mendez, 251 F.3d 514, 517 (5th

Cir. 2001) (“[A] presumption of vindictiveness attaches any time

that a defendant receives a harsher sentence on resentencing by

the same judge who imposed the previous sentence.”); United

States v. Vontsteen, 950 F.2d 1086, 1089 n.2 (5th Cir. 1992) (en

banc) (holding that “the Pearce rule applies to a new sentence

imposed after appeal whether or not preceded by a new trial”).

To defeat the Pearce presumption of vindictiveness, a sentencing

judge must give affirmative, objective reasons for the higher

sentence based on events occurring after the first sentencing

“that may have thrown new light upon the defendant’s ‘life,

health, habits, conduct, and mental and moral propensities.’”

Pearce, 395 U.S. at 723 (quoting Williams v. New York, 337 U.S.

241, 245 (1949)).   Specifically, the district court’s reasons

must be based on “either objective information newly acquired by

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the court following the original sentencing or sentence-enhancing

occurrences post-dating the original sentencing.”   Resendez-

Mendez, 251 F.3d at 518.

     Suriano timely objected to the district court’s increase of

his sentence on remand from this court.   We review de novo

whether a district court’s proffered reasons for imposing an

increased sentence after reversal or vacatur and remand are

sufficient to rebut the Pearce presumption of vindictiveness.

See United States v. Campbell, 106 F.3d 64, 66 (5th Cir. 1997);

see also Resendez-Mendez, 251 F.3d at 517 (“The great deference

we owe to district courts’ sentencing is erased by the Pearce

presumption when a harsher sentence is imposed on

resentencing.”).   The facts relied on by a judge in imposing a

harsher sentence on resentencing must appear in the record, “so

that the constitutional legitimacy of the increased sentence may

be fully reviewed on appeal.”   Pearce, 395 U.S. at 726.

     In the instant case, the district court gave two reasons for

its decision to impose a harsher sentence on Suriano.   First, the

district judge stated that the resentencing permitted him to

undertake a more careful analysis of the “particulars” of the

case.   However, the district judge did not have any new

“particulars” before him on resentencing.   The judge relied on

the same presentence report that he relied on in the original

sentencing, and no newly-acquired information or post-sentence

conduct was added to the record between the original sentencing

                                 4
and the resentencing.   Reevaluation of the same “particulars” of

a case that were in the record used for the original sentencing

is not a legitimate ground for imposing a harsher penalty on

resentencing.   See Pearce, 395 U.S. at 723, 726.

     Second, the district judge explained that a harsher sentence

was warranted because the resentencing provided him with “the

benefit of hearing from [Suriano],” which failed to “convince[]

[him] that [Suriano] is repentant.”       In Resendez-Mendez, a

vindictive-sentencing case involving facts substantially similar

to those involved in the instant case, we made clear that “the

sentencer’s subjective evaluation of the sincerity of defendant’s

allocution is neither relevant to the question of vindictiveness

nor probative in dispelling it.”       251 F.3d at 519.   We noted

further that in thus relying on a determination that a

defendant’s allocution is insincere to impose an increased

sentence, “[i]t is as though the court was requiring the

defendant’s allocution to justify not increasing the original

sentence, a purpose opposite from allocution’s opportunity to

seek a lesser sentence.”   Id. at 518.

     Because, as both parties agree, neither of the district

judge’s purported reasons for imposing a harsher sentence on

resentencing is an “objective reason . . . either occurring or

discovered after imposition of the original sentence,” we presume

that the district judge acted vindictively in meting out the

harsher sentence, a presumption which has not been rebutted.         Id.

                                   5
Accordingly, we vacate Suriano’s sentence and remand for

resentencing.   Suriano has asked that we remand to a different

judge.   We decline.   We are confident that the district judge

will, after allocution and consideration of Suriano’s request for

a downward departure, impose a lawful sentence.

     The sentence imposed on remand is VACATED and the case is

remanded for resentencing.




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