UNITED STATES of America, Plaintiff-Appellee, v. Vernon Lee BAD MARRIAGE, Jr., Defendant-Appellant, 439 F.3d 534

SCHWARZER, Senior District Judge: Vernon Lee Bad Marriage, Jr., (Bad Marriage) appeals his sentence imposed following his guilty plea to a charge of assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6) and 1153. Finding no error, we affirm. FACTUAL AND PROCEDURAL HISTORY Bad Marriage was indicted in March 2003 on a charge of aggravated sexual assault in violation of 18 U.S.C. §§ 2241(a)(1) and 1153. Following a plea agreement, he was charged in a superseding information with assault resulting in serious bodily injury. He pled guilty to that charge.

The incident giving rise to the charge occurred on January 30, 2003. Bad Marriage was released from tribal jail to attend an Alcoholics Anonymous meeting. Instead, he went to the home of Leeta Old Chief, his girlfriend. After having consensual sex, they drove to visit friends. There an argument ensued between the couple and Bad Marriage began hitting Old Chief. The couple then drove to the rodeo grounds where Bad Marriage severely kicked and beat Old Chief. Bad Marriage and Old Chief then had anal sex. Old Chief initially told FBI agents that she had been raped but later retracted this claim.

Once Old Chief told law enforcement officers that she would no longer be willing to testify that Bad Marriage had raped her, the government dismissed the indictment in exchange for Bad Marriage’s guilty plea to the information charging assault resulting in serious bodily injury. The district court sentenced Bad Marriage under the then-binding Sentencing Guidelines. The court ruled, based on U.S.S.G. § 4A.1.3 (policy statement), that the criminal history level III under-represented both the seriousness of Bad Marriage’s past criminal conduct and the likelihood that he would commit future crimes.

It sentenced Bad Marriage to forty-one months in prison, the high end of the sentencing range determined under the Guidelines with his offense score and adjusted criminal history level. Bad Marriage appealed the sentence, contending that his criminal history did not consist of serious offenses warranting a departure under U.S.S.G. § 4A.1.3. This court reversed and remanded for resentencing, holding that “an upward departure pursuant to § 4A.1.3 was not justified by the facts.” United States v. Bad Marriage, 392 F.3d 1103, 1115 (9th Cir.2004) (Bad Marriage I).

In imposing sentence on remand, the district court provided a lengthy statement of reasons, starting with an analysis of the Ninth Circuit decision. It read that decision as resting on the fundamental premise that the Sentencing Guidelines were binding on the court. United States v. Booker, however, changed that, establishing that application of the Guidelines could not be mandatory. 543 U.S. 220, 125 S.Ct. 738, 756-57, 160 L.Ed.2d 621 (2005). Under Booker, the court is required to take into account the Guidelines as well as the sentencing considerations contained in 18 U.S.C. § 3553(a).

The court then enumerated the factors it considered in arriving at the sentence in addition to the advisory Guidelines calculation, including the defendant’s extensive criminal record, the absence of assurance that the defendant will not offend again given the opportunity, the defendant’s capacity to commit brutal and degrading acts of violence, and the substantial blunt force injury inflicted by the defendant’s kicking the victim with heavy hiking boots.

In sum, the court concluded, the defendant is an extremely dangerous person capable of inflicting severe harm on vulnerable and defenseless persons, calling for a sentence that recognizes the brutality of the assault and the need to protect the public in the future. The court then sentenced Bad Marriage to forty-eight months in prison. This timely appeal followed. DISCUSSION I. THE MANDATE AND LAW OF THE CASE A Law of the Case Bad Marriage’s principal contention is that the district court failed to comply with this court’s mandate.

That mandate was to resentence Bad Marriage “within the appropriate range.” Bad Marriage I, 392 F.3d at 1115. Bad Marriage reads the mandate as requiring imposition of a sentence based on offense level sixteen and criminal history category III resulting in a range of twenty-seven to thirty-three months. We disagree. The court’s opinion does not elucidate “the appropriate range.” Its resentencing mandate was based on its determination that the upward adjustment of Bad Marriage’s criminal history was not justified. Id. at 1111-13. Its decision rested on its

interpretation of U.S.S.G. § 4A1.3, “Departures Based on Inadequacy of Criminal History Category (Policy Statement),” and that section’s application to the facts of the case. Although there is a degree of overlap between the factors bearing on criminal history and those relevant under § 3553, the court did not decide whether other factors relevant to the Guidelines calculation could have justified an upward departure. See, e.g., U.S.S.G. § 5K2.8 Extreme Conduct (Policy Statement) (2003) (court may increase the sentence above the Guidelines range for “conduct unusually ... brutal or degrading to the victim”).

On remand, the district court looked to the Guidelines as advisory but made no reference to Bad Marriage’s criminal history category. When defense counsel, in the course of his argument, asked the court to apply category III in its Guidelines calculation, the court did not respond, neither rejecting nor granting this request. The district court’s stated reasons for imposing its sentence were, in substance, to punish the defendant for committing a brutal assault on a defenseless person and to protect the public from similar conduct in the future.

Although the court, free of the constraint of the Guidelines, imposed a more severe sentence on remand, we find nothing in the record to suggest that the sentence contravened the mandate. B. The Effect of Booker Even if we were to read Bad Marriage I to hold that on the facts no upward departure from the Guidelines range is justified, the law of the case doctrine does not bar the sentence. “Under the ‘law of the case’ doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case.” Minidoka Irrigation Disk v.

Dep’t of Interior, 406 F.3d 567, 573 (9th Cir.2005) (quoting Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir.2002)). The doctrine is subject to three exceptions, only one of which is relevant here, to wit, where intervening controlling authority makes reconsideration appropriate. Id. The opinion in Bad Marriage I was issued on December 30, 2004. On January 12, 2005, the Supreme Court decided Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621.

The Booker decision fundamentally changed the sentencing regime under which Bad Marriage I was decided, making the Guidelines advisory rather than mandatory. 125 S.Ct. at 756-57 (district courts must consult the Guidelines but are not bound by them). If Bad Marriage I is read to establish the law of the case under a mandatory Sentencing Guidelines regime, Booker, which leaves Guidelines as advisory only, is intervening controlling authority displacing prior law of case. II. OTHER CONTENTIONS ON APPEAL Bad Marriage’s other contentions may be readily disposed of.

He contends first that the retroactive application of Booker to increase his sentence for a pre-Booker offense violates the Ex Post Facto clause of the Constitution. We squarely rejected this claim in United States v.

Dupas, 419 F.3d 916 (9th Cir.2005), for three reasons: the Booker opinion specifically makes the advisory Guidelines regime applicable to pending cases; retroactive sentence enhancements, as opposed to retroactive increases in the scope of criminal liability, do not offend the ex post facto prohibition; and although application of Booker could result in an increased sentence, the statutory maximum penalty gave sufficient notice to satisfy due process. Id. at 920-21. Next, Bad Marriage contends that the sentence was unreasonable.

He relies on the court’s statement in Bad Marriage I that it found “nothing in the record to suggest that the standard range set by the Sentencing Guidelines would be an inadequate deterrent.” Id. at 1113. That statement is not helpful to Bad Marriage. It referred to the calculation of the appropriate criminal history category. As previously discussed, Bad Marriage I decided that an upward adjustment of the criminal history category was not justified; it did not decide the appropriate sentencing range.

The district court followed the proper procedure in arriving at its sentence, taking into account the Guidelines and considering the § 3553 factors, in particular “the seriousness of the offense,” § 3553(a)(2)(A) (noting the brutality of the assault on a defenseless person), and the need “to protect the public from further crimes of the defendant.” § 3553(a)(2)(C). While we recognize that the sentence is above the advisory Guidelines range, that alone, without a factual showing, is insufficient to make it unreasonable.

Finally, Bad Marriage contends that the imposition of the longer sentence following his successful appeal raises a presumption of vindictiveness. He argues that the presumption applies here because the district court in increasing the sentence did not rely on any new or additional evidence. But the presumption applies only when “there is a ‘reasonable likelihood’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (internal citation omitted).

It is overcome when “the reasons for[imposition of a more severe sentence] affirmatively appear.” Id. at 798, 109 S.Ct. 2201 (quoting North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). Those reasons affirmatively appear here. When the district court imposed the original sentence, it was constrained by the mandatory Guidelines. At resentencing, as the court explained, that constraint had been removed freeing it to use its discretion to impose a sentence it deemed appropriate. Its reasons for the particular sentence are fully explained on the record.

We conclude that the change in circumstances together with the court’s explanation for its sentence suffice to remove any taint of vindictiveness. CONCLUSION For the reasons stated, the judgment and sentence are AFFIRMED. Dissent by Judge BERZON. . In beginning its analysis, the court referred to Bad Marriage's contention "that his criminal history, while extensive, does not consist of serious offenses warranting departure under U.S.S.G. § 4A1.3.” Bad Marriage I, 392 F.3d at 1107. The court’s opinion then proceeded to discuss "Ninth Circuit Law on § 4A1.3 Departures.” Id. at 1108.

It concluded by "hold[ing] that the seriousness of a defendant's prior convictions must be a significant factor in a decision to depart under either prong of § 4A1.3.” Id. at 1110. It next discussed the "Recidivism Prong” and concluded "that an upward departure based on the [recidivism] prong of § 4A1.3 was not justified.” Id. at 1113. Finally, the court discussed "Substance Abuse” and concluded that "the length and character of Bad Marriage’s criminal record is clearly the result of a serious drinking problem.

To sentence Bad Marriage to a longer term on the basis of that record would serve no useful purpose.” Id. at 1114. . Contrary to Bad Marriage's assertion, the district court was free to consider the Booker issue sua sponte. United States v. Cortez-Arias, 425 F.3d 547, 548 (9th Cir.2005) . Several decisions have reached the same conclusion. See, e.g., United States v. Puche, 155 Fed.Appx. 487, 492 (11th Cir.2005) (unpublished); United States v. Butler, 139 Fed. Appx. 510, 512 (4th Cir.2005) (unpublished). See also United States v.

Lang, 405 F.3d 1060, 1064 (10th Cir.2005) (published) (stating that the Blakely decision might constitute an exceptional circumstance for purposes of the mandate rule).