                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 27 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   18-50168

              Plaintiff-Appellee,                D.C. No. 2:14-cr-00556-R-1

 v.
                                                 MEMORANDUM*
ALEX ROMERO MEDRANO, AKA
Dreamer,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                           Submitted August 16, 2019**
                              Pasadena, California

Before: CALLAHAN and CHRISTEN, Circuit Judges, and CHEN,*** District
Judge.




      *
             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).
      ***
            The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
      Alex Medrano pleaded guilty to distribution of methamphetamine, and was

originally sentenced to probation.1 The government appealed that sentence as

incompatible with the five-year statutory mandatory minimum sentence established

for his crime of conviction. We agreed with the government, and remanded for

resentencing “in accordance with the mandatory minimum[.]” United States v.

Medrano, 714 F. App’x 765, 766 (9th Cir. 2018). On remand, the district court

imposed a five-year term of imprisonment. Medrano now appeals his revised

custodial sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we

affirm.

      Medrano cites United States v. Arrellano-Rios, 799 F.2d 520, 523 (9th Cir.

1986), for the proposition that an increased sentence imposed after a defendant has

fully served a lawful sentence violates the Double Jeopardy Clause. Medrano

overlooks that his original sentence was not lawfully imposed, as we clearly

articulated in our memorandum disposition remanding this case for resentencing.

See Medrano, 714 F. App’x at 766. Our case law distinguishes an unlawful first

sentence from a lawful one, and the Double Jeopardy Clause is not implicated

when a lawful sentence is imposed after an unlawful sentence is vacated. See



      1
             Because the parties are familiar with the facts and arguments, we
recite them only as necessary to resolve Medrano’s appeal.
                                         2
United States v. Kane, 876 F.2d 734, 737 (9th Cir. 1989) (“Generally, a defendant

can acquire no expectation of finality in an illegal sentence, which remains subject

to modification.”); United States v. Edmonson, 792 F.2d 1492, 1496 (9th Cir.

1986) (“There is no double jeopardy prohibition against correcting an illegal

sentence even if such correction increases the punishment.”). Likewise, we discern

no constitutional problem with the failure to credit non-custodial time against a

custodial sentence. Cf. Kennick v. Superior Ct., 736 F.2d 1277, 1281, 1283 (9th

Cir. 1984).

      Medrano’s due process challenge also fails. Substantial, prejudicial

appellate delay can trigger due process concerns, United States v. Antoine, 906

F.2d 1379, 1382 (9th Cir. 1990), but in this case the delay between Medrano’s first

sentence of probation and the completion of the government’s appeal was caused

in large part by Medrano’s repeated probation violations. In light of the fact that

the Bureau of Prisons has credited the six months Medrano served in custody for

his fourth probation violation against his five-year prison sentence, Medrano has

not shown that his right to due process was violated.2

      AFFIRMED.



      2
             The government’s unopposed motion to supplement the record (Dkt.
No. 29) is granted.
                                          3
