                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                   F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                   March 21, 2007
                        FOR THE FIFTH CIRCUIT
                        _____________________                   Charles R. Fulbruge III
                                                                        Clerk
                             No. 06-30504
                        _____________________

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

                                  versus

JAMES CAIN,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
                      USDC No. 2:04-CR-14-ALL
_________________________________________________________________

Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

     This case comes before us for a second time on appeal.

Finding no error, we affirm.

                                   I.

     James Cain was convicted following a jury trial of being a

felon in   possession   of   a   firearm,   possession   with    intent     to

distribute cocaine base, and using, carrying, and brandishing a

firearm during and in relation to a drug trafficking crime.             Prior

to his first sentencing hearing, the Government requested an upward

departure in the light of Cain’s threats to the police and the


     *
      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this opinion should not be published and is not precedent except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.
public during his apprehension, his use of a firearm to facilitate

his drug crime, and his lengthy criminal history.                   The district

court declined to impose a departure, finding that to do so would

violate      the    Sentencing    Guidelines,      but    awarded   the    maximum

Guideline sentence.       Cain was sentenced to 115 months on the felon-

in-possession count and the intent to distribute count, the terms

to run concurrently, and to a mandatory minimum term of 84 months

of imprisonment on the use of a firearm count, to run consecutively

to the sentence on the other two counts.                  Cain appealed and we

affirmed his conviction, but vacated and remanded for resentencing

on the basis that the sentence had violated Cain’s Sixth Amendment

rights because of a three-point enhancement under U.S.S.G. §

3A1.2(b).

       At the commencement of Cain’s post-Booker resentencing, the

district court stated that it was considering exercising its

discretion to depart upwardly from the Guidelines.                  The district

court   listed      Cain’s   past    offenses,     noting    that   he    had   been

convicted of a new offense every year or two since the age of

twelve.      It further noted that many of his convictions were for

violent or drug offenses.           The district court also recognized that

Cain’s most recent offense occurred less than two years following

his release from custody for possession of cocaine.                 It expressed

its intention, in imposing the original sentence, to provide Cain

with    “a   more    structured      life”   and   with     an   opportunity    for

rehabilitation.

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     The district court then heard arguments from both the defense

and the prosecution, and engaged in a lengthy dialogue with Cain

himself regarding his criminal history and his behavior while

incarcerated for the instant offense.       It also noted that Cain had

been the subject of three incident reports since his imprisonment.

The court concluded that the shorter sentences that Cain had

received on state convictions had clearly not benefitted him.

     The district court then re-computed the Guideline sentence for

Cain’s offenses and noted that it did not take into account the

multiple offender sentence for which Cain would have been eligible

in state court.        The court then reiterated Cain’s significant

criminal record and emphasized that a lengthy sentence would permit

him to have long-term drug, mental health, and anger management

counseling.

     The    district   court   concluded   by   reimposing   the   original

sentence.      In making its ruling, the court said “[t]his sentence

reflects ... the seriousness of [Cain’s] prior convictions, the

seriousness of what he would be facing if he was under a state

scheme   for    multiple   offender   status,   as   well   as   the   strong

considerations of Section 3553 of the United States Code, Title 18

in the areas [sic] of recidivism.”




                                      3
                                           II.

       On appeal, Cain contends that the district court violated 18

U.S.C. § 3553(a)(6) by commenting on the sentence Cain would have

received in         state    court   for   analogous      conduct;    and   that    the

district         court’s    upward      departure    from    the     guidelines      at

resentencing was “presumptively vindictive.”                 Because Cain raised

no objection to the sentence before the district court, we review

for plain error.           Under this standard, Cain must demonstrate clear

or obvious error that affected his substantial rights.                          United

States v. Fernandez-Cusco, 447 F.3d 382, 385 (5th Cir. 2006).

Neither of Cain’s claims support his position that his sentence was

clearly erroneous.

                                           A.

       Cain first argues that the district court’s consideration of

the analogous state court sentence was plainly erroneous. However,

as Cain himself notes, this court has not yet addressed the effect

of the district court’s consideration of state sentencing practices

as a basis for a non-guidelines sentence. Even assuming, arguendo,

that        we   agree     with   the    Fourth     and   Eighth     Circuits      that

consideration of state penalties is an improper application of §

3553(a)(6),** we are reluctant to say that the district court’s


       **
        See United States v. Jeremiah, 446 F.3d 805, 807-08 (8th
Cir. 2006) (state and federal offenders are not similarly situated
for sentencing purposes); United States v. Clark, 434 F.3d 684, 687
(4th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 2054 (2006) (“The
sole concern of section 3553(a)(6) is with sentencing disparities
among federal defendants”) (emphasis omitted).

                                            4
error was plain, given the lack of guidance from our court on this

question.

     Even if, however, the district court’s error had been plain,

Cain cannot demonstrate that his substantial rights were affected.

The district court reiterated repeatedly that he felt that a

lengthy sentence was necessary to prevent recidivism given Cain’s

extensive and serious criminal record, and to provide Cain with the

opportunity       to   undergo   the    long-term      psychological    and     drug

counseling that would be necessary for his rehabilitation.                      This

reasoning   is     sufficient     to    support   the    imposition    of   a   non-

Guidelines sentence.          United States v. Smith, 440 F.3d 704, 707

(5th Cir. 2006).       The district judge has twice given Cain the same

sentence, and Cain has offered us no reason to believe that the

outcome of a third sentencing would be any different. We therefore

find that Cain has failed to establish plain error.

                                         B.

     Cain next argues that the district court erred in imposing a

higher    sentence      on    remand,    based    on     the   same   Presentence

Investigation Report.          He claims that because the district court

imposed a higher sentence based on the same criminal history, this

court    should    presume     that    the    increase   was   vindictive.        We

disagree.

     “The purpose of the presumption [of vindictiveness] is to

protect litigants from fear of judicial retaliation following a

successful appeal.”          United States v. Reinhart, 442 F.3d 857, 860

                                          5
(5th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 131 (2006).                A

presumption of vindictiveness does not arise unless the record

indicates a “reasonable likelihood” of vindictiveness.              Id.    Cain

has failed to point to anything in the record that would indicate

vindictiveness on the part of the district court.            In fact, we have

specifically held that a district court’s exercise of its post-

Booker discretion to upwardly depart based on § 3553(a) is “plainly

a valid reason” for a sentencing increase. Id. (internal quotation

mark omitted).      The   record   reflects     that   the    district    court

expressly   recognized    its   new       discretion   in    calculating    the

Guidelines sentence, and provided a thorough analysis of the §

3553(a) factors in determining that a non-Guidelines sentence was

appropriate.     We find neither vindictiveness, nor error in the

district court’s decision to reimpose Cain’s original sentence.

                                   III.

     For the foregoing reasons, the judgment of the district court

is

                                                                    AFFIRMED.




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