                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 17 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10039

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00596-GMN-
                                                 GWF-1
 v.

PAUL WOMMER,                                     MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                 Gloria M. Navarro, Chief District Judge, Presiding

                          Submitted November 20, 2015**
                             San Francisco, California

Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.

      Paul Wommer was convicted of three counts of structuring financial

transactions, one count of tax evasion, and one count of making a false return or

statement. Wommer successfully appealed his sentence of 41 months’


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
imprisonment, and was subsequently resentenced to 33 months’ imprisonment.

Wommer challenges his resentencing as vindictive. We affirm.

1.    Wommer argues that the district judge engaged in vindictive resentencing

after Wommer’s successful appeal to this court. See United States v. Wommer, 584

F. App’x 815 (9th Cir. 2014). Wommer’s initial sentence of 41 months’

imprisonment was at the low end of the guidelines range. At resentencing, the

district judge found that Wommer qualified for a lower total offense level than at

the initial sentencing, and she imposed a sentence of 33 months’ imprisonment.

This sentence was at the high end of the guidelines range. Because Wommer’s

overall sentence was not increased, no presumption of vindictiveness arises. United

States v. Horob, 735 F.3d 866, 871 (9th Cir. 2013). Nor did Wommer prove actual

vindictiveness on the part of the district judge, who reasonably could have

concluded that a 33-month sentence was appropriate given the underlying conduct

and sentencing factors. See id. at 871-72.

2.    Wommer also argues that the district court was vindictive in denying his

motion for unescorted commitment to Bureau of Prisons custody. The district

judge provided an explanation for denying the motion that was unrelated to

Wommer’s exercise of his right to appeal. See Fenner v. U.S. Parole Comm’n, 251

F.3d 782, 789 (9th Cir. 2001) (finding no vindictiveness where the Parole


                                             2
Commission “provided wholly logical, nonvindictive reasons for issuing the parole

violation warrant” after the defendant filed a habeas petition) (internal quotation

marks omitted). Thus, there was nothing vindictive in the district judge’s denial of

Wommer’s motion for unescorted commitment to Bureau of Prisons custody.

      AFFIRMED.




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