United States of America v. Paul Wommer

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAUL WOMMER,
Defendant - Appellant.
No. 15-10039
D.C. No. 2:10-cr-00596-GMN-
GWF-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
Submitted November 20, 2015**
San Francisco, California
Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.
Paul Wommer was convicted of three counts of structuring financial
transactions, one count of tax evasion, and one count of making a false return or
statement. Wommer successfully appealed his sentence of 41 months’
FILED
DEC 17 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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imprisonment, and was subsequently resentenced to 33 months’ imprisonment.
Wommer challenges his resentencing as vindictive. We affirm.
1. Wommer argues that the district judge engaged in vindictive resentencing
after Wommer’s successful appeal to this court. See United States v. Wommer, 584
F. App’x 815 (9th Cir. 2014). Wommer’s initial sentence of 41 months’
imprisonment was at the low end of the guidelines range. At resentencing, the
district judge found that Wommer qualified for a lower total offense level than at
the initial sentencing, and she imposed a sentence of 33 months’ imprisonment.
This sentence was at the high end of the guidelines range. Because Wommer’s
overall sentence was not increased, no presumption of vindictiveness arises. United
States v. Horob, 735 F.3d 866, 871 (9th Cir. 2013). Nor did Wommer prove actual
vindictiveness on the part of the district judge, who reasonably could have
concluded that a 33-month sentence was appropriate given the underlying conduct
and sentencing factors. See id. at 871-72.
2. Wommer also argues that the district court was vindictive in denying his
motion for unescorted commitment to Bureau of Prisons custody. The district
judge provided an explanation for denying the motion that was unrelated to
Wommer’s exercise of his right to appeal. See Fenner v. U.S. Parole Comm’n, 251
F.3d 782, 789 (9th Cir. 2001) (finding no vindictiveness where the Parole
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Commission “provided wholly logical, nonvindictive reasons for issuing the parole
violation warrant” after the defendant filed a habeas petition) (internal quotation
marks omitted). Thus, there was nothing vindictive in the district judge’s denial of
Wommer’s motion for unescorted commitment to Bureau of Prisons custody.
AFFIRMED.
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