In U.S. v. Nerius, 15-3688, 2016 WL 3003781 (3d Cir. May 25,
2016), Nerius was sentenced to a bottom-of-the-range 37 months as a career
offender following conviction for impeding correctional employees and damaging
property within prison. On Johnson
remand, Nerius was resentenced to 36 months, the top of the non-career offender
range. The Third Circuit rejected Nerius’s
claim that the new sentence triggered a presumption of judicial vindictiveness and
violated due process under North Carolina v. Pearce, 395 U.S. 711 (1969), because
the Pearce presumption does not apply when the new sentence is less than that
originally imposed. The Court found the fact that the two
sentences fell in different -in this case opposite- relative positions within
the original and revised Guideline ranges to be irrelevant.
Absent the presumption, an appellant must demonstrate “proof
of actual vindictiveness” to support a claim of judicial vindictiveness. Nerius did not raise a claim of actual
vindictiveness.
