SAMUEL ANTHONY WASHINGTON, PETITIONER V. UNITED STATES OF AMERICA No. 90-7476 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-4) is unreported, but the decision is noted at 899 F.2d 20. JURISDICTION The judgment of the court of appeals was entered on March 26, 1990. A petition for rehearing was denied on September 27, 1990. The petition for a writ of certiorari was filed on March 4, 1991, and is therefore substantially out of time under Rule 13.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, after remand from the court of appeals, the district court sentenced petitioner to a presumptively vindictive sentence. STATEMENT 1. After a jury trial in the United States District Court for the Central District of California, petitioner was convicted of use of counterfeit access devices, in violation of 18 U.S.C. 1029(a)(1) (Counts 1-3); and possession of 15 or more counterfeit and unauthorized access devices, in violation of 18 U.S.C. 1029(a)(3) (Count 4). He was sentenced to three years' imprisonment on each count; on Count 2, however, the district court sentenced petitioner to six months in jail, suspended the rest of his sentence, and ordered that he be placed on five years' probation, with the sentence on Count 2 to run consecutively to the sentence imposed on the other counts. C.A. E.R. 4. Petitioner appealed his conviction, and the court of appeals reversed and remanded for a new trial. Pet. App. 2. Following his successful appeal, petitioner pleaded guilty to Counts 2 and 3, which charged the use of counterfeit access devices. The district court sentenced petitioner to three years' imprisonment on each count, credited him with time served, and suspended the balance of the sentence. The court also imposed a special assessment fee and placed him on five years' probation on condition that he (1) provide 1500 hours of community service, and (2) report to the district court in person every 120 days. Petitioner moved to strike his conditions of probation and the penalty assessment. The district court struck the penalty assessment, but denied petitioner's motion as to his conditions of probation. Pet. App. 2; C.A. E.R. 7-8. 2. The court of appeals affirmed the sentence, rejecting petitioner's claim that his new sentence raised a presumption of vindictiveness. The court observed that a presumption of judicial vindictiveness arises if the defendant, after successfully challenging his conviction, receives a sentence that is harsher than the original sentence and unexplained by objective information occurring after the original sentencing. Pet. App. 3 (citing North Carolina v. Pearce, 395 U.S. 711, 726 (1968)). But "(a) presumption of judicial vindictiveness does not arise if the new sentence is less severe than the sentence originally imposed." Pet. App. 3. The court of appeals concluded that, "because the district court credited (petitioner) with time served and because (petitioner) had time remaining on his new prison sentence which the district court suspended, his new sentence was not more severe than his original sentence." Pet. App. 3. The court further explained that, "(b)ecause a presumption of vindictiveness arises only if the new sentence is harsher and unexplained * * * and will not arise following the imposition of a more lenient sentence * * * the district court did not err by imposing community service and reporting requirements on (petitioner) as conditions of probation." Ibid. ARGUMENT Petitioner renews his claim (Pet. 6-13) that his new sentence raised an impermissible presumption of vindictiveness. This contention is without merit and does not warrant review. In North Carolina v. Pearce, 395 U.S. at 719-723, this Court held that the Double Jeopardy Clause does not absolutely prohibit a harsher sentence upon reconviction following a successful appeal. Accord Colten v. Kentucky, 407 U.S. 104, 119 (1972). However, if vindictiveness plays any part in the decision to impose a more severe sentence following a successful appeal, there is due process violation. Pearce, 395 U.S. at 725. A presumption of vindictiveness arises if the same sentencing authority imposes a greater sentence, unless the reasons for doing so affirmatively appear. Id. at 726. But this presumption of vindictiveness does not arise where the second sentencer "has no motivation to engage in self-vindication" (Chaffin v. Stynchcombe, 412 U.S. 17, 27 (1973)) and where the possibility of vindictiveness is highly speculative (Texas v. McCullough, 475 U.S. 134, 139 (1986)). Here, a presumption of vindictiveness is inappropriate for two reasons. First, the so-called increase in the second sentence consisted only of community service and additional reporting requirements during probation. The district court never sought to increase petitioner's prison sentence or probationary period. It is highly speculative to presume vindictiveness on the part of the district court based on these relatively light additions to the conditions of petitioner's probation. See McCullough, 475 U.S. at 139; see also United States v. Pimienta-Redondo, 874 F.2d 9, 13 (1st Cir.) ("the presumption envisioned in Pearce arises 'only in cases in which a reasonable likelihood of vindictiveness exists'"), cert. denied, 110 S. Ct. 233 (1989). Absent "proof of an improper motive -- or some sound reason to suspect the existence of one -- no reasonable apprehension of vindictiveness can flourish." Pimienta-Redondo, 874 F.2d at 13. Second, in any event, petitioner also received a benefit from the second sentence. Although petitioner had been released from prison under the first sentence (see Pet. 12), a substantial term of parole remained, with numerous restrictive conditions. See C.A. Supp. of Record In Support of Petn For Rehearing (Certificate of Parole). The second sentence effectively eliminated this parole requirement. Thus, under his first sentence, petitioner faced a five-year probation period and parole; under his second sentence, he faces a five-year probation period (with additional requirements of community service and reporting to the district court), but no parole. Put simply, an exchange of a parole obligation for a requirement of community service and reporting to the district court is not a "harsher" sentence that merits invoking the presumption of vindictiveness. Contrary to petitioner's contention, the district court's sentence "on remand, fairly evaluated, does not signal retaliatory animus." Pimienta-Redondo, 874 F.2d at 14. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General GEOFFREY R. BRIGHAM Attorney MAY 1991