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.