                                                   Filed:   June 5, 2002

                     UNITED STATES COURT OF APPEALS

                         FOR THE FOURTH CIRCUIT


                               No. 01-7057
                      (CR-99-296-AW, CA-98-2476-M)



United States of America,

                                                  Plaintiff - Appellee,

            versus


Dennis Olivares,

                                                 Defendant - Appellant.



                               O R D E R



     The court amends its opinion filed May 28, 2002, as follows:

     On page 5, footnote 3 -- the text of the footnote is changed

to begin:    “Additionally, Olivares misunderstands our decision in

United States v. Hillary ....”

                                           For the Court - By Direction



                                           /s/ Patricia S. Connor
                                                    Clerk
            PUBLISHED

   UNITED STATES COURT OF APPEALS

          FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,
     Plaintiff-Appellee,

     v.                                No. 01-7057


DENNIS OLIVARES,
     Defendant-Appellant.


Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-99-296-AW, CA-98-2476-M)


 Argued: January 24, 2002

   Decided: May 28, 2002

Before WILKINSON, Chief Judge, and LUTTIG and
 MICHAEL, Circuit Judges.

____________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Chief Judge Wilkinson joined. Judge Michael wrote an opinion
concurring in the judgment.

____________________________________________________________

                 COUNSEL

ARGUED: Booth Marcus Ripke, Fred Warren Bennett, BENNETT
& NATHANS, L.L.P., Greenbelt, Maryland, for Appellant. Hollis
Raphael Weisman, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio, United
States Attorney, Greenbelt, Maryland, for Appellee.

____________________________________________________________
                  OPINION

LUTTIG, Circuit Judge:

   In this appeal, we must decide whether the Double Jeopardy Clause
bars imposition of a sentence greater than that which was originally
imposed when a defendant, who has succeeded in getting his first
conviction vacated, is convicted on retrial by a different magistrate
judge. The district court concluded that it does not, and we agree.

             I.

   A magistrate judge convicted appellant, Dennis Olivares, of assault
in violation of 18 U.S.C. § 113(a)(4) and sentenced him to a fine of
$500 and a $10 special assessment. J.A. 26. Olivares immediately
paid the $510, and, five days later, appealed to the district court.
Because the proceedings before the magistrate judge apparently were
not recorded, the district court vacated the conviction and ordered a
new trial. On retrial, a different magistrate judge found Olivares
guilty and sentenced him to a $300 fine, a $10 special assessment,
and 12 months of supervised probation (which he has subsequently
violated1). J.A. 27 & n.3. Olivares did not appeal.

   In March 2001 Olivares filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2255, claiming that the imposition of a greater sen-
tence at his second trial violated the Double Jeopardy Clause, because
by paying the original fine, he had already discharged his sentence in
full. The magistrate judge recommended denying relief except that
$200 should be refunded (the difference in the fines). J.A. 37. The
district court adopted the magistrate's report, J.A. 38-39, and subse-
quently granted a certificate of appealability, J.A. 43.

            II.

   Olivares contends that the imposition of a more severe penalty on
retrial violates the Double Jeopardy Clause. But, as the Supreme
____________________________________________________________
  1
    After his first probation violation, the magistrate judge increased the
length of probation and ordered him to spend 30 days in a community
corrections facility.

             2
Court observed in North Carolina v. Pearce, 395 U.S. 711, 720
(1969), overruled on other grounds by Alabama v. Smith, 490 U.S.
794 (1989), when a defendant succeeds in getting his conviction set
aside on grounds other than insufficiency of the evidence, "it has been
settled that a corollary power of the power to retry a defendant is the
power, upon the defendant's reconviction, to impose whatever sen-
tence may be legally authorized, whether or not it is greater than the
sentence imposed after the first conviction." (Emphasis added). This
follows from the fact that "the original conviction has, at the defen-
dant's behest, been wholly nullified and the slate wiped clean,"
Pearce, 395 U.S. at 721. See also Jones v. Thomas, 491 U.S. 376, 381
(1989) (noting that this facet of the Double Jeopardy Clause "en-
sure[s] that sentencing courts do not exceed, by the device of multiple
punishments, the limits prescribed by the [legislature]").

   The principal protection afforded to defendants who succeed in
having their original convictions vacated is not the Double Jeopardy
Clause, but rather the Due Process Clause. See Pearce, 395 U.S. at
725. Due process requires that vindictiveness play no role in resen-
tencing the defendant. See Smith, 490 U.S. at 798 (recognizing that
sentencing discretion "must not be exercised with the purpose of pun-
ishing a successful appeal").2

   Olivares, however, does not argue that his greater sentence resulted
from vindictiveness on the part of the second magistrate judge.
Indeed, he recognizes that the certificate of appealability issued by the
district court was limited to the double jeopardy issue, see Appellant's
Reply Br. at 11, and he has not moved for an additional certificate of
appealability here. Instead, he asserts that the Double Jeopardy Clause
prohibits a sentence increase upon retrial "when the defendant has
____________________________________________________________
  2
     Pearce placed sharp limitations on resentencing in such cases, requir-
ing the sentencing judge to provide reasons for the increased sentence
based on "objective information concerning identifiable conduct on the
part of the defendant occurring after the time of the original sentencing
proceeding." Id. at 726. Subsequent cases have limited Pearce's pre-
sumption of vindictiveness to circumstances in which there is a "`reason-
able likelihood' that the increase in sentence is the product of actual
vindictiveness on the part of the sentencing authority," Smith, 490 U.S.
at 799 (internal citation omitted).

             3
acquired a `legitimate expectation of finality.'" Appellant's Br. at 13;
see also Appellant's Reply Br. at 11-13. For its part, the government
devotes much of its brief to rebutting Olivares' assertion that he has
acquired a legitimate expectation of finality. See, e.g., Appellee's Br.
at 5-8. But, as we explain below, expectations of finality, legitimate
or otherwise, have nothing to do with this case.

            III.

   We have looked to whether a defendant has acquired a legitimate
expectation of finality when determining whether a subsequent
increase in sentence for an unvacated conviction constitutes multiple
punishments for the same offense, which may violate the Double
Jeopardy Clause. See, e.g., United States v. Bello, 767 U.S. 1065,
1070 (1985) (discussing United States v. DiFrancesco, 449 U.S. 117,
138-39 (1980)). But cf. Thomas, 491 U.S. at 381 ("Our cases establish
that in the multiple punishment context [the interest protected by the
Double Jeopardy Clause] is `limited to ensuring that the total punish-
ment did not exceed that authorized by the legislature.'") (quoting
United States v. Halper, 490 U.S. 435, 450 (1989)) (citations omit-
ted).

    In United States v. Silvers, 90 F.3d 95 (4th Cir. 1996), we
addressed whether the district court could increase sentences on
counts for which the original sentences had been fully served in an
effort to make the defendant's total sentence the same as it had been
before another count was vacated. We held that by serving the sen-
tences in full for these unvacated counts, the defendant had acquired
a "legitimate expectation of finality" in those sentences, and the dis-
trict court could not, consistent with the Double Jeopardy Clause,
increase those sentences. See id. at 101.

   Our holding in Silvers did not contradict the Supreme Court's
admonition in Pearce that "the guarantee against double jeopardy
imposes no restrictions upon the length of a sentence imposed on
reconviction," Pearce, 395 U.S. at 719 (emphasis added), for the
obvious reason that Silvers did not involve vacation of the original
conviction followed by retrial and reconviction.

             4
   Nevertheless, Olivares relies on Silvers, arguing that "[f]or double
jeopardy purposes, the analysis does not hinge on whether the sen-
tence or punishment was vacated." Appellant's Br. at 22-23. As evi-
dence for this assertion, he quotes United States v. Smith, 115 F.3d
241, 246 (4th Cir. 1997), but does so completely out of context. See
Appellant's Br. at 21-22, 23 n.10. We did say that"[n]o doubt exists
that under the court's decision in Silvers if a defendant has fully dis-
charged his sentence pertaining to certain counts, he may not be
resentenced on those counts," Smith, 115 F.3d at 246. But quite obvi-
ously we referred only to unvacated counts; only such counts were at
issue in Smith and Silvers. Furthermore, a more broad reading would
conflict with Pearce, as we have already explained.3

   Finally, Olivares insists that the district court's reasoning (and
hence ours) would lead to "absurd results." Appellant's Br. at 21 n.9,
23. He asks us to assume hypothetically that we remand on a techni-
cal issue for retrial and that in the meantime, Olivares has fully served
his sentence. He opines that the district court could then sentence him
to yet another prison term. True, on remand the district court could
sentence him to any legally authorized punishment. See Pearce, 395
U.S. at 720; see also Thomas, 491 U.S. at 381. Olivares apparently
forgets that "punishment already exacted must be fully `credited' in
imposing sentence upon a new conviction for the same offense,"
Pearce, 395 U.S. at 719-20 (footnote omitted). He also forgets that
Due Process, and not Double Jeopardy, is the principal protection in
this context.

   In summary, we inquire into whether a defendant has acquired a
____________________________________________________________
  3
    Additionally, Olivares misunderstands our
decision in United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997),
claiming that we "indicate[d] that the important consideration for double
jeopardy is . . . [whether] the sentence was fully served before any appeal
was taken or before any sentence was vacated," Appellant's Br. at 23
n.10. Rather, in Hillary, we worried that the "active portion of Hillary's
drug sentence" was going to end in 10 days. Hillary, 106 F.3d at 1173.
We wanted to avoid the difficult issue of whether Hillary's sentence
could be increased after that point, and, accordingly, directed that his "re-
sentencing take place as soon as is just and practical." Id. Once again, we
addressed only unvacated convictions.

             5
legitimate expectation of finality in his sentence only when we ana-
lyze whether an increase in the sentence relating to an unvacated con-
viction violates the Double Jeopardy Clause. Because Olivares
succeeded in getting his original conviction vacated (on grounds other
than insufficiency of the evidence), the Double Jeopardy Clause is not
violated by the second magistrate judge imposing a greater (though
still lawful) sentence.

       CONCLUSION

   For the foregoing reasons, the judgment of the district court is
affirmed.

            AFFIRMED

MICHAEL, Circuit Judge, concurring in the judgment:

   I agree with the majority that even though Olivares had fully dis-
charged the sentence imposed after his first trial and conviction, the
Double Jeopardy Clause did not bar the magistrate judge from impos-
ing a harsher sentence following Olivares's retrial and reconviction.
However, I reach this conclusion by applying the "legitimate expecta-
tion of finality" test introduced by the Supreme Court in United States
v. DiFrancesco, 449 U.S. 117 (1980), and first applied by our court
in United States v. Bello, 767 F.2d 1065 (4th Cir. 1985). Unlike the
majority, I do not read North Carolina v. Pearce, 395 U.S. 711
(1969), as holding that the Double Jeopardy Clause is never impli-
cated when a defendant is reconvicted and resentenced after his origi-
nal conviction has been vacated. The two defendants in Pearce were
in the early stages of their sentences when they succeeded in having
their convictions set aside: one defendant was two and one-half years
into a ten-year sentence, and the other was a few years into a twelve-
to fifteen-year sentence. See id. at 713-14. The Pearce Court was thus
not presented with (and did not decide) the question of whether
imposing a harsher sentence after the original sentence has been com-
pletely discharged violates the Double Jeopardy Clause. As a result,
we can only determine whether Olivares's harsher second sentence
subjected him to multiple punishments for the same offense by asking
if he "had a legitimate expectation of finality as to the severity of his
[first] sentence." Bello, 767 F.2d at 1070. Olivares wanted a second

             6
chance to gain an acquittal. To get that chance, he appealed to have
his first judgment of conviction, which included his sentence, set
aside. In choosing that course, Olivares had to understand that things
could again go wrong at a second trial; if they did, he had no guaran-
tee that his sentence would not be increased. In other words, by
appealing his first judgment of conviction, Olivares "by his own
hand[ ] defeated his expectation of finality [in the first sentence], and
the Double Jeopardy Clause, which guards against Government
oppression, does not relieve [him] from the consequences of his vol-
untary choice." United States v. Silvers, 90 F.3d 95, 100 (4th Cir.
1996) (citation and internal quotations omitted). I therefore concur in
the judgment affirming the district court.

             7
