                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                               JUL 28 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 13-30164

              Plaintiff - Appellee,              D.C. No. 1:04-cr-00082-SEH-1

  v.
                                                 MEMORANDUM*
BRIAN EDWARD BARKER,

              Defendant - Appellant.


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

                       Argued and Submitted July 10, 2014
                               Portland, Oregon

Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.


       Brian Edward Barker was found guilty of distribution of methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession with intent to

distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and

sentenced to a term of life imprisonment. After a successful 28 U.S.C. § 2255


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
motion, the district court resentenced Barker to a term of 262 months’

imprisonment, to run consecutively to a prior undischarged term of imprisonment.

Barker appeals his new sentence. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      1. Barker’s Sixth Amendment argument is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224 (1998). “We have repeatedly held . . . that

Almendarez-Torres is binding unless it is expressly overruled by the Supreme

Court.” United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per

curiam); see also United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009).

This the Supreme Court has not done. See Alleyne v. United States, 133 S. Ct.

2151, 2160 n.1 (2013).

      2. The law-of-the-case doctrine has no application here. When a district

court resentences a defendant, whether upon remand from an appellate court or, as

here, after the grant of a motion under § 2255, the court is free to reassess the

possible sentencing options and construct a new sentencing package that “reflect[s]

its considered judgment as to the punishment the defendant deserves for the crimes

of which he is still convicted.” United States v. Handa, 122 F.3d 690, 692 (9th

Cir. 1997); see also Pepper v. United States, 131 S. Ct. 1229, 1250–51 (2011).

Accordingly, the district court was entitled to reconsider whether Barker’s criminal


                                        Page 2
conduct and personal characteristics warranted imposing his current sentence

consecutively to his prior undischarged sentence.

      3. Resentencing Barker to serve his new term of imprisonment

consecutively to his prior undischarged sentence did not violate the prohibition

against double jeopardy. “The imposition of a new sentence constitutes a second

punishment only if [the defendant] had a legitimate expectation of finality of his

original sentence by the time the new sentence was imposed.” United States v.

Radmall, 340 F.3d 798, 800 (9th Cir. 2003). Where a defendant who has not

completed serving a valid portion of his sentence places the sentence in issue, such

as by filing a § 2255 motion, he has no legitimate expectation of finality in the

unchallenged portion of his sentence. See United States v. McClain, 133 F.3d

1191, 1194 (9th Cir. 1998); Handa, 122 F.3d at 692; United States v. Moreno-

Hernandez, 48 F.3d 1112, 1116 (9th Cir. 1995).

      4. Nor did resentencing Barker to a term of imprisonment that runs

consecutively to a prior undischarged sentence violate due process. “Due process

of law . . . requires that vindictiveness against a defendant for having successfully

attacked his first conviction must play no part” in his resentencing. North

Carolina v. Pearce, 395 U.S. 711, 725 (1969), overruled on other grounds by

Alabama v. Smith, 490 U.S. 794 (1989). Here, however, no presumption of


                                       Page 3
vindictiveness arises because Barker’s new sentence is not more severe overall

than his original sentence, see United States v. Horob, 735 F.3d 866, 870 (9th Cir.

2013), and because the judge on resentencing was not the same judge who imposed

Barker’s original sentence, see United States v. Curtin, 588 F.3d 993, 999 (9th Cir.

2009). Nor does Barker make a showing of actual vindictiveness. See Smith, 490

U.S. at 799–800; Horob, 735 F.3d at 871–72.

      5. The district court did not commit procedural error in sentencing Barker to

serve his current sentence consecutively to a prior undischarged sentence.

U.S.S.G. § 5G1.3(b), which provides for concurrent sentences in certain

circumstances, does not apply here because Barker’s prior conviction was not used

to increase the offense level of the instant offenses. And, although the court did

not explicitly state the reason for imposing the new sentence consecutively to the

prior undischarged sentence, it did consider the sentencing factors set forth in 18

U.S.C. § 3553(a), specifically discussing Barker’s extensive criminal history, the

need for deterrence and incapacitation, the need for the sentence to reflect the

seriousness of the offense, and the available sentences. A sentencing explanation

which discussed the § 3553(a) factors is adequate even though it “[does] not

specifically justify the choice between concurrent and consecutive sentences.”

United States v. Fifield, 432 F.3d 1056, 1065 (9th Cir. 2005).


                                       Page 4
      6. The district court properly denied Barker’s request for credit for time

served. The double jeopardy clause of the Fifth Amendment requires that time

served on a vacated sentence be credited against any sentence subsequently

imposed for the same offense. See Pearce, 395 U.S. at 718–19. Moreover, 18

U.S.C. § 3585(b) provides that “[a] defendant shall be given credit toward the

service of a term of imprisonment for any time he has spent in official detention

prior to the date the sentence commences . . . as a result of the offense for which

the sentence was imposed.” We do not question Barker’s entitlement to receive

credit for time served, and the government conceded as much during oral

argument. However, case law makes clear that the Bureau of Prisons, not the

sentencing court, must calculate credit for time served in the first instance. See

United States v. Wilson, 503 U.S. 329, 334–35 (1992); United States v. Lualemaga,

280 F.3d 1260, 1265 (9th Cir. 2002).

      AFFIRMED.




                                       Page 5
