                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 13 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30181

                Plaintiff-Appellee,             D.C. No.
                                                2:14-cr-00041-JLQ-1
 v.

JUSTIN CURTIS WERLE,                            MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Eastern District of Washington
                 Justin L. Quackenbush, District Judge, Presiding

                          Submitted December 5, 2017**
                              Seattle, Washington

Before: O’SCANNLAIN, TALLMAN, and WATFORD, Circuit Judges.

      Justin Curtis Werle appeals the district court’s imposition of consecutive

sentences after he pled guilty to (1) unlawful possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g)(1), and (2) possession of an

unregistered firearm, in violation of 26 U.S.C. § 5861(d). Because the facts are


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
known to the parties, we repeat them only as necessary to explain our decision.

                                          I

      Werle’s procedural attack on his consecutive sentences is without merit,

because the district judge “adequately [] explain[ed] the sentence selected.” See

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008). The district judge

determined that a total sentence of 140 months was appropriate and thoroughly

explained his decision: he considered the sentencing factors in 18 U.S.C. §

3553(a), emphasizing Werle’s criminal history, and concluded that a 140-month

sentence “is sufficient but not greater than necessary” to ensure “adequate

deterrence and . . . protect the public.” And the judge selected consecutive

sentences in order to ensure that Werle was imprisoned for 140 months, because

each of Werle’s counts carries a maximum sentence of 10 years.

                                         II

      Werle’s substantive attacks on his consecutive sentences also fail. 1

                                         A

      The district judge did not vindictively impose a harsher sentence to punish

Werle for appealing his initial sentence. See Alabama v. Smith, 490 U.S. 794, 798–


1
 Werle also argues that the district court erred in determining that his prior
convictions for felony harassment under Washington Revised Code §
9A.46.020(2)(b)(ii) were crimes of violence, thereby imposing a sentence
enhancement. We address this argument in a contemporaneously filed per curiam
opinion.

                                          2
99 (1989) (holding that vindictive sentencing after appeal violates due process).

The district judge lowered Werle’s total sentence after his appeal: he was initially

sentenced to 180 months, but was sentenced to 140 months after the appeal. Thus,

Werle does not benefit from any presumption of vindictiveness. See United States

v. Hagler, 709 F.2d 578, 579 (9th Cir. 1983) (finding no vindictiveness without a

net increase in punishment). And the mere imposition of consecutive, rather than

concurrent, sentences after appeal raises no specter of vindictiveness, because the

district judge properly utilized consecutive sentences in order to reach his selected

“total punishment” of 140 months. See U.S.S.G. § 5G1.2(d).

                                          B

      Werle was not improperly punished twice for the same crime, because each

of his two counts “requires proof of a fact which the other does not.” Blockburger

v. United States, 284 U.S. 299, 304 (1932). A conviction under 18 U.S.C. §

922(g)(1) requires proof that the defendant is a felon, while a conviction under 26

U.S.C. § 5861(d) requires proof that the firearm is unregistered.

                                         III

      The judgment of the district court is AFFIRMED.




                                          3
