In United States v. Moreno-Hernandez, 48 F.3d 1112 (9th Cir.), cert. denied, 515 U.S. 1151 (1995), Moreno-Hernandez was convicted in federal court of conspiracy to transport aliens (count 1), two counts of transporting aliens (counts 2 and 3), and being an alien found in the United States after a felony conviction and subsequent deportation under 8 U.S.C. § 1326(b)(1) (count 4). Id. at 1113.
Each term of imprisonment was to be served concurrently, and to be followed by a three-year term of supervised release on each count, also concurrent. Id. at 1114.
With regard to count 4, Moreno-Hernandez was initially sentenced to 125 months under 8 U.S.C. § 1326(b)(2). Id.
The statute carried a maximum penalty of fifteen years if the predicate felony is an "aggravated" felony. On appeal, the United States Court of Appeals for the Ninth Circuit concluded that the government did not prove that the prior felony was an "aggravated felony." Id. at 1114 n.1.
Therefore, it remanded for resentencing under 8 U.S.C. § 1326(b)(1), which carried a maximum penalty of five years. Id. at 1114.
On remand, the court resentenced Moreno-Hernandez under 8 U.S.C. § 1326(b)(1). Id.
But, based on the sentencing guidelines, the court "ordered his sentence on that count to be served consecutively to, rather than concurrently with, the 60- month concurrent sentences imposed on counts 1-3." Id.
Nevertheless, Moreno-Hernandez's overall sentence for all four counts was decreased from 125 months to 120 months. Id.
Again, Moreno-Hernandez appealed.
He contended, inter alia, that the court improperly changed the concurrent sentence to a consecutive sentence. Id. at 1113.
Rejecting that claim, the Ninth Circuit stated, 48 F.3d at 1116:
A resentencing mandate from an appellate court . . . does away with the entire initial sentence, and authorizes the district court to impose "any sentence which could lawfully have been imposed originally." Kennedy v. United States, 330 F.2d 26, 29 (9th Cir. 1964) (quoting United States v. Chiarella, 214 F.2d 838, 842 (2d Cir.), cert. denied, 348 U.S. 902 (1954). In the latter case, double jeopardy is not implicated. A defendant has no legitimate expectation of finality in a sentence which he places in issue by direct appeal, so long as he has not completed serving the valid portion of the sentence. United States v. Andersson, 813 F.2d 1450, 1461 (9th Cir. 1987).
Because, in this case, the district court resentenced Moreno-Hernandez in accordance with our mandate, and not pursuant to FED. R. CRIM. P. 35 ("Correcting or Reducing a Sentence"), the court was free to reconsider the entire "sentencing package" and to restructure the sentences to run consecutively. See United States v. Jenkins, 884 F.2d 433, 441 (9th Cir. 1989) (noting that on remand after vacation of sentence, the district court should have an opportunity to reconsider the entire "sentencing package", not only the unlawful portion), cert. denied, 493 U.S. 1005 (1989).
Further, the court said, id. at 1117:
The district court's resentencing order that the sentence on count 4 run consecutively to the concurrent sentences on counts 1-3 does not violate our remand. In that remand we did not limit the overall sentence the district court could impose, nor did we circumscribe the manner in which the court could apply the Sentencing Guidelines. We simply directed the district court to limit its sentence on count 4 to the five-year maximum prescribed by section 1326(b)(1).
Moreno-Hernandez's argument that our previous remand precluded the district court from imposing a consecutive sentence completely ignores United States Sentencing Guidelines ("USSG"), 18 U.S.C Appx. § 5G1.2(d) ("Sentencing on Multiple Counts of Conviction"). That section is specifically designed to provide for consecutive sentences whenever, as was the case here, the sentencing range determined from the defendant's combined offense level exceeds the maximum sentence permitted on the count of conviction that carries the highest statutory maximum. See United States v. Joetzki, 952 F.2d 1090, 1097 (9th Cir. 1991). Because Moreno-Hernandez had previously been deported after conviction for an aggravated felony, he was subject, under USSG § 2L1.2(b)(2), to an enhanced sentencing range of 100-125 months on count 4. The maximum possible sentence for that count, however, and for each of the other counts on which Moreno-Hernandez was convicted, is only five years. The district court therefore acted within its authority in requiring Moreno-Hernandez to serve his sentence on count 4 consecutively to his sentences on counts 1-3. This resulted in an overall sentence of 120 months, which is within the 125-month upper limit of the guidelines range for count 4 when enhanced under USSG § 2L1.2(b)(2).