United States of America v. Wayne Lee Bates

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4309
WAYNE LEE BATES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-86-60)
Submitted: December 22, 1999
Decided: January 13, 2000
Before MURNAGHAN, WILKINS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Thomas M. Blaylock, Roanoke, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Jennie L. M. Waering, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION
PER CURIAM:
Wayne Lee Bates filed a motion under 28 U.S.C.A.§ 2255 (West
Supp. 1999), challenging, inter alia, his convictions on seven counts
of interstate transportation of forged traveler's checks in violation of
18 U.S.C.A. § 2314 (West Supp. 1999). The district court had sen-
tenced Bates to consecutive five-year prison terms on each of these
seven convictions, five years on two counts of violating 28 U.S.C.
§ 2312 (1994), and five years on one count of conspiracy pertaining
to the substantive charges, for a total of forty-five years in prison.
Finding that the transportation of the seven forged traveler's checks
across state lines constituted only a single offense, this court vacated
six of the seven counts and remanded for resentencing on the single
remaining § 2314 conviction for transporting the seven forged checks.
The district court resentenced Bates to ten years in prison, the statu-
tory maximum, for the single § 2314 violation, giving him a total sen-
tence of twenty years in prison. Bates now appeals, claiming that the
district court vindictively gave him a higher sentence on the single
§ 2314 conviction because he successfully challenged his initial con-
viction. We find no merit to his claim. Consequently, we affirm.
Due process prohibits a district court from vindictively resentenc-
ing a defendant for successfully attacking his first conviction. See
North Carolina v. Pearce, 395 U.S. 711, 725 (1969). A defendant's
resentencing is not considered vindictive where"the ultimate sentence
for one or more counts does not exceed that given for all counts sen-
tenced at the conclusion of the first trial." United States v. Gray, 852
F.2d 136, 138 (4th Cir. 1988).
Here, Bates' new sentence for the single conviction of transporting
the seven forged checks across state lines is lower than his initial sen-
tence for the seven separate counts of transporting the seven checks
across state lines. We find no vindictiveness in Bates' resentencing.
Consequently, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
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