                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                  _______________________________

                             No. 00-40585
                  _______________________________


UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,


versus


JOSÉ ALFREDO RESENDEZ-MENDEZ,

                                               Defendant-Appellant.

      _________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
         _________________________________________________

                            May 15, 2001

Before DAVIS, WIENER, and STEWART, Circuit Judges.

WIENER, Circuit Judge:

     Defendant-Appellant José Alfredo Resendez-Mendez (“Resendez”)

asks us to vacate his 71-month sentence for illegal reentry that

the district court assessed following our vacatur and remand for

resentencing.   Resendez also asks us to reinstate his original 57-

month sentence for the same crime or, alternatively, to remand

again for resentencing.     We conclude that the district court’s

proffered reasons for increasing Resendez’s sentence on remand are

not sufficient to rebut the presumption of vindictiveness that

attaches when a harsher sentence is meted out on resentencing
following reversal or vacatur and remand.                   We therefore vacate

Resendez’s subsequently imposed 71-month sentence and reinstate his

original sentence of 57 months’ imprisonment.

                                         I.

                            FACTS AND PROCEEDINGS

      Resendez   pleaded       guilty    to    reentering    the    United   States

illegally after deportation, in violation of 8 U.S.C.A. § 1326. In

exchange for his plea, Plaintiff-Appellee the United States of

America (“the Government”) agreed to recommend a sentence at the

low end of the range determined in accordance with the United

States Sentencing Guidelines. Recommending a three-level reduction

for acceptance of responsibility, Resendez’s presentence report

determined the appropriate guideline range to be 57 to 71 months’

imprisonment.        The district court sentenced him to 57 months, the

shortest prison term in his guidelines range, to be followed by a

three-year term of supervised release.

      We vacated that sentence on appeal because the district court

had   failed    to    afford    Resendez       the   opportunity     to   speak   in

mitigation of his sentence.             On remand, the same judge expressed

the   opinion    that     Resendez       was    inadequately       remorseful     and

resentenced him to 71 months in prison, the longest period in his

guideline range, to be followed by a three-year term of supervised

release.




                                          2
       Before      pronouncing    the     new   sentence,   the    district   court

afforded Resendez allocution, asking whether he had anything to say

to the court.        Resendez responded:

             Yes, Your Honor. I know —— first of all, I would
       like to apologize again. I know I did wrong. I am here
       because I didn’t know I was going to get this much time.
       But if I knew that, I wouldn’t be talking to you right
       now, to this Court.
             I know I am not —— I have been illegal here, but
       also I have done some good things, also. I helped save
       three lives.    Unfortunately couldn’t save the fourth
       one.1
             My wife had a work accident and it has been almost
       a year that I was without a job, and she has trouble
       struggling to survive with my little daughter. I ask if
       it will be possible to have a less[ ] harsh sentence.

The court asked Resendez whether he was sure he had nothing else to

say,       and   after   some   further    discussion   stated      to   Resendez’s

counsel:

             Because having reviewed and heard from your client
       now in this particular hearing, I am not convinced that
       he is very sincere and genuine. I am not convinced of
       that.
             Having given him the opportunity to speak to me, I
       just don’t think he is very —— he is very honest.      I
       really don’t.

The defendant responded that he did not understand why the court

was “saying that I am not being honest with you.                  I am real sorry,

like I say.”        The court replied:

            Well, let’s not say you are not [sic] dishonest.
       You don’t appear to be very repentant. You don’t appear
       to —— you didn’t express any regrets having engaged in
       this conduct. And that you know is why people have an
       opportunity to address the Court. You know, they can say

       1
        Resendez referred to a car accident in which he rescued
three drowning victims.

                                           3
     something or they don’t have to say anything. But it
     does touch upon a final decision to be made pursuant to
     the sentencing processes.
          I am not impressed with what you told me. I am not
     convinced and persuaded that you are —— you do —— you are
     repentant.

Resendez replied: “I don’t know how to say it, but I know I did

wrong.   I am sorry for it.”

     After imposing sentence, the court stated:

     The Court does notice that I am modifying the sentence I
     heretofore imposed, but I have already stated of record
     that I simply had additional time to review the matter.
     And it is [ac]knowledged that I am doing this at a time
     when I am not facing sentencing ten or fifteen people at
     the same time; and, in addition to that, I am not
     convinced and persuaded from what you have told me that
     you are truly sorry for the commission of this offense.2

Resendez timely perfected this appeal.

                                   II.

                               ANALYSIS

A.   Standard of Review

     Although   the   Government   contends   that   Resendez   did   not

contemporaneously object to the lengthier sentence, our review of

the record of the resentencing proves that, to the contrary, he

effectively did so.3      Therefore, we review de novo whether the

court’s proffered reasons for increasing the sentence on remand are

     2
        Contrary to the implication of this remark, the record
reflects that Resendez was sentenced individually in the first
instance, not in a group of ten or fifteen defendants.
     3
        After the court pronounced the new sentence, Resendez’s
counsel stated: “Your Honor, [ ] we ask the Court to reconsider
the issue of the 71 months, as you imposed the original sentence
of 57 months.”

                                    4
sufficient to overcome the legal presumption that such an increased

sentence constitutes vindictiveness.4

B.   Analysis

     In North Carolina v. Pearce,5 the Supreme Court established

the rule that 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.6              We noted in United

States v. Campbell that the Pearce rule is “a prophylactic one,

addressed more to protect future litigants who appeal than to the

injustice    done   in   the   actual    case.       Tolerance     of   a   court’s

vindictiveness might ‘chill’ a defendant’s right to seek an appeal

of her sentence.”7       Due process requires that a defendant not face

increased    punishment     solely      as    retribution    for    successfully

appealing a conviction, and also must “be freed of apprehension of

such a     retaliatory    motivation     on    the   part   of   the    sentencing

judge.”8     When a judge imposes a harsher sentence following a




     4
         United States v. Campbell, 106 F.3d 64, 66 (5th Cir.
1997).
     5
        395 U.S. 711 (1969), overruled in part on other grounds,
Alabama v. Smith, 490 U.S. 794 (1989).
     6
        Although Pearce addressed a harsher sentence imposed on
retrial, we also have applied it to resentence on remand. See
Campbell, 106 F.3d at 67 (citing United States v. Vontsteen, 950
F.2d 1086, 1089 n.2 (5th Cir. 1992)).
     7
         Campbell, 106 F.3d at 67.
     8
         Pearce, 395 U.S. at 725.

                                         5
successful appeal, “some reason for the increase must plainly

demonstrate that no vindictiveness was involved.”9

     In this case, there is no evidence that the district court was

actually motivated by subjective vindictiveness in imposing the

harsher sentence on Resendez’s second appearance.            It is equally

plain, however, that the court neither expressed nor indicated any

objective reason sufficient to rebut the Pearce presumption of

vindictiveness; indeed, no objective reason at all.             The great

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

Pearce    presumption   when   a   harsher   sentence   is     imposed   on

resentencing, and the sentencing court must rebut the presumption

of vindictiveness with some objective reason for its reassessment.

     In Pearce, the Supreme Court held that a trial judge may

impose a new, lengthier sentence

     in the light of events subsequent to the first trial that
     may have thrown new light upon the defendant’s “life,
     health,    habits,  conduct,   and   mental   and   moral
     propensities.” Such information may come to the judge’s
     attention from evidence adduced at the second trial
     itself, from a new presentence investigation, from the
     defendant’s prison record, or possibly from other
     sources.10




     9
          United States v. Schoenhoff, 919 F.2d 936, 938 (5th Cir.
1990).
     10
        Pearce, 395 U.S. at 723 (citation omitted); see also id.
at 726 (holding that reasons for imposing more severe sentence on
defendant “must be based upon objective information concerning
identifiable conduct on the part of the defendant occurring after
the time of the original sentencing proceeding”).

                                    6
Our own precedent concerning such information has tended to focus

on the defendant’s criminal activity.         United States v. Scott, for

example, centered on new information about the amount of drugs

involved in a conspiracy and the defendant’s personal involvement

in   dealing   crack   cocaine.11     Similarly,   in     United   States    v.

Schmeltzer, we upheld a lengthier prison term on resentencing in a

case that involved both new convictions on additional charges and

an applicable four-level offense increase that had been overlooked

by the first probation officer.12 “The changed circumstances —— the

convictions for four different charges and the increased offense

level —— are sufficient objective events and information justifying

an increase so as to rebut any presumption of vindictiveness,” we

wrote.13

      No similar newly discovered facts, changed circumstances, or

post-sentencing    occurrences      emerged   regarding    Resendez   or    his

criminal behavior following his original sentencing.                  We take

particular note of the fact that the district court did not rescind

its previous grant to Resendez of a three-level reduction for his

acceptance of responsibility, despite the court’s rejection of

      11
           48 F.3d 1389, 1398 (5th Cir. 1995).
      12
           United States v. Schmeltzer, 20 F.3d 610, 613 (5th Cir.
1994).
      13
        Id.; see also Texas v. McCullough, 475 U.S. 134, 136
(1986) (involving new evidence on retrial that (1) the defendant
—— not his accomplices —— had slashed a murder victim’s throat,
and (2) the defendant had been released from prison only four
months before the killing).

                                      7
Resendez’s expressions of regret and remorse in his allocution as

insincere. It 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.

     We    do    not    wish   to     discourage   criminal   defendants    from

expressing remorse at allocution, or to impinge on a court’s

discretion to assess a defendant’s sincerity.               We hold only that a

district court must identify some objective reason or reasons,

either occurring or discovered after imposition of the original

sentence, to overcome the presumption of vindictiveness and justify

a lengthier sentence when it imposes one on remand.                    Under the

circumstances of this case, we hold that the sentencing court’s

subjective      discrediting     of    the    defendant’s   somewhat   ambiguous

statements at allocution is objectively inadequate to rebut the

presumption of vindictiveness.               Those statements, whether or not

disingenuous, did not constitute either objective information newly

acquired    by    the    court      following   the   original   sentencing   or

sentence-enhancing occurrences post-dating the original sentencing.

                                         III.

                                      CONCLUSION

     We re-emphasize that the Supreme Court’s legal doctrine of

presumed vindictiveness, which we apply today, is an objective one.

As such, nothing in this opinion should be read to imply actual or

subjective vindictiveness on the part of the sentencing judge,

                                          8
either toward Resendez for his successful appeal or toward this

court   for   our   previous    reversal         and   remand.     Simply   put,    a

presumption of vindictiveness arises automatically when, on remand

following vacatur of sentence, the same judge who imposed the

original sentence assesses a stiffer one.                For a harsher sentence

to stand under such circumstances, the re-sentencing court must

articulate specific reasons, grounded in particularized facts that

arise either from newly discovered evidence or from events that

occur after the original sentencing.

     Our remand for failure to grant allocution has no correlation

with the presumption of vindictiveness that arose subsequently when

the sentence imposed on remand exceeded the original, vacated

sentence. Yet Resendez’s lack of sincere remorse in his allocution

is all that the sentencing court expressed in justification of the

increased     sentence.    As    we    have       explained,     reversal   of   the

presumption of vindictiveness and justification of an increased

sentence are wholly dependent on the sentencing court’s specific

verbalization of either new information or subsequent occurrences

that objectively support imposition of an enhanced sentence on

remand.

     We do not take issue with the district court’s necessarily

subjective      credibility     call        on     Resendez’s      sincerity       or

truthfulness, either in proffering extenuating circumstances in

allocution or in expressing remorse or regret.                     In this case,

however, the sentencer’s subjective evaluation of the sincerity of

                                        9
defendant’s allocution is neither relevant to the question of

vindictiveness nor probative in dispelling it.            Such a subjective

determination is not a substitute for objective reasons sufficient

to reverse the legal presumption of vindictiveness and justify the

harsher sentence.

     For the foregoing reasons, therefore, we vacate Resendez’s

sentence of 71 months in prison and reinstate his original 57-month

sentence,   to   be   followed   by   a    three-year   term   of   supervised

release.

SENTENCE IMPOSED ON REMAND VACATED; ORIGINAL SENTENCE REINSTATED.




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