Appeal from the United States District Court for the District of Hawaii Helen Gillmor, District Judge, Presiding Argued and Submitted May 8, 1998 Honolulu, Hawaii
Before: James R. Browning, Melvin Brunetti, and Pamela Ann Rymer, Circuit Judges.
The opinion of the court was delivered by: Rymer, Circuit Judge:
Lisa Rapal was sentenced following a guilty plea to six counts of forgery and negotiating a worthless instrument in violation of Hawaii law pursuant to the Assimilative Crimes Act (ACA), 18 U.S.C. S 13, to four months' imprisonment and one year supervised release on each count with the sentences to run concurrently. She appeals on the ground that this sentence exceeds the maximum allowable under Hawaii law, which provides for a term of imprisonment not to exceed one year, Haw. Rev. Stat. S 706-663, or probation for up to one year, Haw. Rev. Stat. S 706-623. We disagree, and join all other circuits to consider similar issues in holding that the total sentence, comprised of a term of incarceration and a period of supervised release, may permissibly exceed the term of imprisonment allowed under the assimilated state law in order to further the federal policy of supervised release.
Rapal also appeals that part of her sentence which requires her to serve four months in prison as vindictive in light of her original sentence, imposed prior to reversal by the district court for failure of the magistrate Judge to allow allocution, of six months in custody only one of which had to be served in prison. We agree that this portion of the sentence must be vacated and the matter remanded for resentencing.
On December 20, 1995, the magistrate Judge sentenced Rapal on each of the six counts to which she pled guilty to six months in custody with one month to be served in prison (on the mainland) and the other five to be served in home confinement, to run concurrently. He did so, as he explained, for the shock value of separating Rapal from her family during the holidays. However, because the magistrate Judge offered Rapal no opportunity to speak on her own behalf, the sentence was vacated on appeal to the district court. Rapal was resentenced October 11, 1996, this time to four months in custody, all to be served in prison (on the mainland).*fn1 The magistrate judge did this because the shock (which he thought had been sufficient for punishment and deterrent purposes before) disappeared "under these circumstances of the appeal." The magistrate Judge said he was
not punishing her for taking the appeal, but the circumstances have changed to that effect. I can no longer shock her. I can no longer put her in and she will realize in a very short period of time because it is the holidays that this is proscribed activity.
However, after Rapal's counsel noted that December was only two months away and if that were the purpose, it could still be served by a two-month term in prison, the magistrate judge replied: "Counsel, I got reversed because I gave her a six-month sentence. So I'm going to give her the four-month sentence which is the minimum. And just have done with it."
 Rapal argues that this sentence was vindictive, in violation of her due process rights under North Carolina v. Pearce, 395 U.S. 711 (1969), overruled in part by Alabama v. Smith, 490 U.S. 794 (1989). We agree. Due process requires that vindictiveness against a defendant for having successfully attacked her first conviction play no part in resentencing after a new trial. Id. at 725-26. Accordingly," `whenever a Judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.' " Wasman v. United States, 468 U.S. 559, 564-65 (1984) (quoting Pearce, 395 U.S. at 726).
The government does not seriously contend that Rapal's second sentence was not more severe than her first, even though it was technically shorter, because the practical effect of serving four months of hard time (which in the circumstances has to be on the mainland), away from her child, is obviously greater than serving one month in prison and five months at home, albeit under detention. See United States v. Williams, 651 F.2d 644, 647 (9th Cir. 1981). That being so, vindictiveness is presumed unless there is " `objective information ...