United States of America v. James Little

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 2024 Decided December 20, 2024
No. 24-3011
UNITED STATES OF AMERICA,
APPELLEE
v.
JAMES LITTLE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cr-00315-1)
Joshua B. Carpenter, Appellate Chief, Office of the
Federal Public Defender for the Western District of North
Carolina, argued the cause and filed the briefs for appellant.
Reuven Dashevsky, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Matthew M.
Graves, U.S. Attorney, and Chrisellen R. Kolb, Nicholas P.
Coleman, and Patrick Holvey, Assistant U.S. Attorneys.
Before: WALKER and PAN, Circuit Judges, and EDWARDS,
Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge PAN.
PAN, Circuit Judge: James Little pleaded guilty to one
count of Parading, Demonstrating, or Picketing in a Capitol
Building, in violation of 40 U.S.C. § 5104(e)(2)(G). The
district court sentenced him to 60 days’ imprisonment,
followed by three years of probation. In a prior appeal, Little
successfully challenged that sentence. We agreed with him that
the applicable statutes did not authorize a “split sentence” that
included both imprisonment and probation for the commission
of a single violation. See United States v. Little, 78 F.4th 453
(D.C. Cir. 2023). We therefore vacated his sentence and
remanded his case to the district court. The district court
resentenced Little to 150 days in prison, with credit for the 60
days in prison he had already served, and an additional credit
of 30 days for the time he had spent on probation. Little claims
that his new sentence violates the Double Jeopardy Clause. We
disagree and affirm.
I.
A.
On January 6, 2021, James Little took part in the riot at the
United States Capitol. He roamed the third-floor Senate
Gallery, taking photographs and sending messages to his
family and friends. In those messages, he said things like: “We
just took over the Capital [sic],” and “We are stopping treason!
Stealing elections is treason! We’re not going to take it
anymore!” J.A. 33. Little ultimately pleaded guilty to one
count of Parading, Demonstrating, or Picketing in a Capitol
Building, in violation of 40 U.S.C. § 5104(e)(2)(G). That
crime carries a maximum punishment of six months in prison
or five years of probation. 40 U.S.C. § 5109(b); 18 U.S.C.
§ 3561(c)(2). The district court sentenced Little to 60 days in
prison followed by three years of probation. The court

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reasoned that “some term of imprisonment is essential in these
cases now to reflect the seriousness of the offense, to promote
respect for the law and to provide just punishment for the
offense.” J.A. 149. In addition, because the court did “not have
confidence that the same [conduct] would not happen in the
next election cycle,” it imposed a probation term so that Little
“[would] not be without court supervision during the next
election cycle.” J.A. 150.
Little appealed his sentence, arguing that the district court
erred by imposing both a term of imprisonment and a term of
probation. We agreed with Little that the relevant statutes —
18 U.S.C. §§ 3551(b) and 3561 — authorize a sentence of
either probation or imprisonment for a single violation, but not
both. United States v. Little (Little I), 78 F.4th 453, 454–56
(D.C. Cir. 2023).1 We thus vacated Little’s sentence and
remanded his case to the district court for resentencing. Id. at
461.
B.
By the time the case was remanded, Little was in the midst
of serving the originally imposed sentence: He had finished
serving the term of imprisonment and was in the middle of his
1 We reasoned that the “menu” of sentencing options under 18
U.S.C. § 3551(b) authorizes “(1) a term of probation”; “(2) a fine”;
“or” “(3) a term of imprisonment” (emphasis added). The statute
further allows the imposition of a fine “in addition to any other
sentence,” but makes no other exceptions to allow for more than one
punishment. Id. § 3551(b). The text and structure of § 3551(b) thus
“show that probation and imprisonment may not be imposed as a
single sentence.” Little I, 78 F.4th at 455. Moreover, we interpreted
18 U.S.C. § 3561(a)(3) to preclude a sentence of imprisonment and
probation for a single violation. Id. at 456.

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time on probation. Little filed a motion to amend the judgment,
asking the district court to forgo resentencing and to terminate
his probation. He noted that 18 U.S.C. §§ 3551(b) and 3561
authorized a sentence of either imprisonment or probation, yet
he had been sentenced to both. Relying on two Supreme Court
cases — Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873), and In
re Bradley, 318 U.S. 50 (1943) — he argued that imposing
further punishment on him under those circumstances would
violate the Double Jeopardy Clause because he had fully
satisfied one of the alternative punishments authorized by
statute.
The district court denied Little’s motion, ruling that our
mandate required Little to be resentenced. See J.A. 281 (noting
that the mandate “vacate[d] Little’s sentence and remand[ed]
to the district court for resentencing” (quoting Little I, 78 F.4th
at 461)). The district court also rejected Little’s argument that
the Double Jeopardy Clause barred the imposition of additional
punishment. The court concluded that a later Supreme Court
case — Jones v. Thomas, 491 U.S. 376 (1989) — requires
courts to read the Lange and Bradley cases narrowly. Relying
on Jones and North Carolina v. Pearce, 395 U.S. 711 (1969),
the district court held that resentencing Little would be lawful
“as long as [the court] credits the time already served in prison
or probation against any new punishment.” J.A. 283.
The district court also noted that “an increase in a
sentence” does not violate the Double Jeopardy Clause unless
the defendant had a “legitimate” “expectation of finality” in the
original sentence. J.A. 285. The court concluded that Little
lacked such a legitimate expectation of finality because Little
chose to appeal the original sentence, and because that sentence
was, in any event, illegal.

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The district court then resentenced Little to 150 days of
imprisonment. To account for the time that Little had served
on the original sentence, the court gave Little credit for the 60
days he spent in prison, as well as an additional credit of 30
days for the 18 months that he had spent on probation. In
arriving at the 30-day credit, the court opined that Little’s
probation “should count for relatively little” because he “spent
essentially no time in compliance with the terms and conditions
of his probation.” J.A. 309 (emphasis in original). After noting
Little’s failure to pay restitution, his lack of remorse, and his
refusal to take responsibility for his actions, the court
concluded that “too great a sentence reduction” would fail to
satisfy the “purposes of sentencing,” including the need for a
sentence “to reflect the seriousness of the offense.” J.A. 310–
11. Ultimately, Little’s new sentence required him to spend an
additional 60 days in prison. After the district court
pronounced its sentence, Little argued for a different credit for
his probation time, requesting “a 5 to 1 ratio” between the time
spent on probation and the time to be subtracted from his
sentence. J.A. 346. But Little did not object to the general
practice of crediting time on probation against time spent in
prison.
Little now appeals his resentencing. We have jurisdiction
under 18 U.S.C. § 3742.
II.
The Double Jeopardy Clause “protects against multiple
punishments for the same offense.” North Carolina v. Pearce,
395 U.S. 711, 717 (1969). Little argues that his new sentence
violates the Double Jeopardy Clause because the district court
imposed additional punishment after Little had already
completed the term of incarceration that was part of his illegal
split sentence. He also contends that he had a legitimate

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expectation of finality in his original sentence. Both of Little’s
arguments are unpersuasive.
A.
As a threshold matter, the government argues that we
should not consider Little’s double jeopardy argument because
we already decided in Little’s previous appeal that additional
jail time could be imposed at his resentencing. We disagree.
Under the law-of-the-case doctrine, “decisions rendered
on the first appeal should not be revisited on later trips to the
appellate court.” LaShawn A. v. Barry, 87 F.3d 1389, 1393
(D.C. Cir. 1996) (en banc). The doctrine encompasses
“questions decided explicitly or by necessary implication.” Id.
at 1394. That principle is not applicable here because Little’s
double jeopardy claim was not briefed, argued, or resolved in
the prior appeal.
Little I considered and decided only one issue: whether the
district court could lawfully impose a split sentence of
probation and imprisonment for a single offense of conviction
under 18 U.S.C. §§ 3551(b) and 3561. Little I, 78 F.4th at 454.
To be sure, Little asked us in that appeal “to reverse and remand
with instructions that [he] be immediately discharged from
probation and that an amended judgment be issued reflecting
no probationary term.” Brief of Appellant, Little I, 78 F.4th
453 (D.C. Cir. 2023) (No. 22-3018), 2022 WL 3010141, at *40.
But neither party asked us to consider how the Double Jeopardy
Clause would affect a resentencing. We denied Little’s
requested remedy and instead “vacat[ed] Little’s sentence and
remand[ed] to the district court for resentencing.” Little I, 78
F.4th at 461. Our opinion did not address the implications of
the Double Jeopardy Clause, and we are not bound by a
footnote in the dissenting opinion that touched upon that issue.
See id. at 469 n.3 (Wilkins, J., dissenting) (noting that “it

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appears” that the district court “could impose” “a longer prison
or probationary term” upon resentencing).
Because Little I did not decide any double jeopardy issue
“explicitly or by necessary implication,” LaShawn A., 87 F.3d
at 1394, Little may raise a double jeopardy claim in the instant
appeal.
B.
1.
Little renews his argument that Lange and Bradley barred
the district court from imposing further punishment when he
was resentenced because the original sentence was an illegal
split sentence, and Little had fully served one of the alternative
sentences permitted by statute. Little raises a question of law
that we review de novo. See United States v. McCallum, 721
F.3d 706, 709 (D.C. Cir. 2013).
We begin with some basic principles that Little does not
contest. It is well established that the Double Jeopardy
Clause’s protection “against multiple punishments for the same
offense” does not preclude retrial and resentencing after a
defendant successfully appeals his or her conviction. Pearce,
395 U.S. at 717. In such a situation, the protection against
multiple punishments “requires that punishment already
exacted must be fully ‘credited’ in imposing sentence upon a
new conviction for the same offense.” Id. at 718–19. The court
may even “impose upon reconviction a longer prison sentence
than the defendant originally received,” so long as the years
already spent in prison are “returned” to the defendant “by
subtracting them from whatever new sentence is imposed.” Id.
at 719; see also Hayes v. United States, 249 F.2d 516, 517
(D.C. Cir. 1957) (“[I]f the sentence were invalid and defendant

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successfully attacked it, he could be validly resentenced though
the resentence increased the punishment.”).
Although Little acknowledges that general rule, he argues
that his case falls within an exception established by Lange and
Bradley. He contends that those cases compel the vacatur of
any additional sentence when a defendant already has served
one of the alternative sentences permitted by statute.
In Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873), the
defendant was convicted of stealing U.S. Post Office mail bags.
He was sentenced to both the statutory maximum term of one
year of imprisonment and the maximum fine of $200. See id.
at 164. The defendant paid the fine in full and began serving
his sentence of imprisonment. Id. Five days into his
imprisonment, a reviewing court vacated the judgment, holding
that the governing statute allowed a sentence of imprisonment
or a fine, but not both. The sentencing court then imposed a
sentence of one year of imprisonment and no fine. Id. The
Supreme Court discharged the defendant, holding that the
resentencing violated double jeopardy principles. Id. at 167–
68, 175. In relevant part, the Court noted: “[W]hen the prisoner
. . . had fully suffered one of the alternative punishments to
which alone the law subjected him, the power of the court to
punish further was gone.” Id. at 176. The Court’s reference to
the defendant’s “full[]” service of “one of the alternative
punishments” appeared to place significance on the
defendant’s payment of the maximum allowable fine — i.e.,
“fully” serving one of the permissible sentences apparently
precluded any additional punishment. See id.
But the Supreme Court seemed to retreat from that
reasoning in In re Bradley, 318 U.S. 50 (1942). There, the
sentencing court imposed both a six-month sentence of
imprisonment and a $500 fine for the defendant’s crime of

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contempt, despite the applicable statute authorizing only a fine
or imprisonment. See Bradley, 318 U.S. at 51. The same day
that the court imposed the dual sentence, it realized its mistake
and sua sponte sought to amend the sentence by reimbursing
the fine and requiring only the six months’ imprisonment. See
id. at 51–52. The defendant refused to accept the refund and
appealed his sentence. Id. at 52. Unlike in Lange, the relevant
statute in Bradley did not prescribe a maximum term of
imprisonment or a maximum fine. See 28 U.S.C. § 385 (1940).
Still, the Supreme Court relied on Lange to order the defendant
discharged from custody, reasoning that an “amendment of the
sentence could not avoid the satisfaction of the judgment.”
Bradley, 318 U.S. at 52–53. The Court held that “[s]ince one
valid alternative provision of the original sentence has been
satisfied, the petitioner is entitled to be freed of further
restraint.” Id.
Little relies on Bradley to argue that he too must be
discharged from any further punishment. Similar to the
defendant in Bradley, Little was originally sentenced to a term
of imprisonment and probation, even though the applicable
statutes authorized a sentence of either probation or
imprisonment, but not both. See Little I, 78 F.4th at 454–56.
Like Bradley, Little did not receive the statutory maximum, but
he had fully satisfied “one valid alternative provision of the
original sentence” — the term of incarceration — by the time
his illegal sentence was vacated. Bradley, 318 U.S. at 52.
Little thus argues that, like Bradley, he is entitled to be freed
from further restraint.
The problem for Little is that both Lange and Bradley were
interpreted narrowly by a more recent Supreme Court case,
Jones v. Thomas, 491 U.S. 376 (1989). Jones clarified that a
key fact in Lange was that the defendant had completed a
statutory maximum sentence; and a key fact in Bradley was that

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the defendant’s alternative sentences were a fine and
imprisonment, and a fine cannot be credited against a prison
sentence. Those important distinctions foreclose Little’s
double jeopardy claim.
In Jones, the sentencing court imposed two consecutive
sentences of imprisonment — one for felony murder and the
other for the underlying felony — despite state law not
authorizing separate sentences in that circumstance. 491 U.S.
at 378–79. The defendant argued that “the Double Jeopardy
Clause requires immediate release for the prisoner who has
satisfied the shorter of two consecutive sentences that could not
both lawfully be imposed.” Id. at 382. In rejecting that
argument and upholding Jones’s resentencing, the Court first
distinguished Lange, in which the defendant had already
completed the statutory maximum punishment, so that any
additional punishment “would obviously have exceeded that
authorized by the legislature.” Id. at 383. The Court explained
that “Lange . . . stands for the uncontested proposition that the
Double Jeopardy Clause prohibits punishment in excess of that
authorized by the legislature.” Id.
The Jones Court next distinguished Bradley, in which the
two sentences imposed “were of a different type, fine and
imprisonment.” 491 U.S. at 384. While “it would not have
been possible to ‘credit’ a fine against time in prison,” the same
was not true of the two prison sentences in Jones because
“crediting time served under one sentence against the term of
another has long been an accepted practice.” Id. The Jones
Court further noted that it did “not think the law compels
application of Bradley beyond its facts.” Id. at 386. Thus, the
Court upheld the resentencing in Jones because the sentencing
court could credit the time that the defendant had already
served against any future punishment. Id. at 384. In other
words, where that defendant was subjected to two sentences

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when only one was permissible, and he had already fully served
one of the sentences, he still could be resentenced without
violating the Double Jeopardy Clause because the time that he
had served on the original sentence could be credited against
his new sentence. That holding is consistent with the well-
established double jeopardy principles that generally allow a
full resentencing after a successful appeal. See Pearce, 395
U.S. at 718–19.
Accordingly, Jones precludes Little’s reliance on Lange
and Bradley. Little’s case is easily distinguished from Lange
because neither Little’s original sentence (of 60 days’
imprisonment and three years’ probation) nor his new sentence
(of 150 days’ imprisonment) exceeded the statutory maximum
of six months’ imprisonment or five years of probation. See 40
U.S.C. § 5109(b); 18 U.S.C. § 3561(c)(2). Moreover, Bradley
is inapposite because Little’s sentence involved incarceration
and probation — not incarceration and a fine — and the district
court gave Little credit for the time that he spent on probation.
When Little was resentenced to 150 days’ incarceration, his
prison time was reduced to reflect a credit of 60 days for the
time that he had already spent in prison and a credit of 30 days
for the 18 months he had served on probation. Thus, under
Jones and Pearce, the resentencing was permissible under the
Double Jeopardy Clause because the time Little served on the
original sentence was “returned” to him when it was
“subtract[ed] . . . from whatever new sentence [was] imposed.”
Pearce, 395 U.S. at 719.
2.
Little’s arguments to the contrary are unconvincing. First,
he asserts that when he was erroneously sentenced to probation
and imprisonment, despite the statute allowing only one of
those options, his punishment was “in excess of that authorized

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by the legislature.” Little Br. 17 (quoting Jones, 491 U.S. at
383). But saying that is so does not make it so. The
determinative fact in Lange was that the defendant had already
paid the statutory maximum fine and no more punishment was
permissible under the statute. Because he then was subjected
to a resentencing that imposed time in prison, the additional
punishment plainly was unlawful. See Lange, 85 U.S. at 175;
Jones, 491 U.S. at 382–83. That is not Little’s situation.
Next, Little argues that time on probation cannot be
credited against a sentence of imprisonment. See Little Br. 26.
Alternatively, he asks us to “hold that ‘credit’ for [d]ouble
[j]eopardy purposes” requires a “1:1 ratio” — i.e., that he
should receive a day’s worth of credit for every day that he
spent on probation. Id. But Little did not raise those arguments
before the district court, and he therefore forfeited them.
“Basic in our criminal procedure is the rule that” a
defendant “must, at the time the ruling or order of the court is
made or sought, make known to the court the action which he
desires the court to take or his objection to the action of the
court and the grounds therefor.” United States v. Lewis, 433
F.2d 1146, 1152 (D.C. Cir. 1970) (cleaned up); see also Fed.
R. Crim. P. 51(b). Neither Little’s written nor oral advocacy
alerted the district court to any argument that probation cannot
be credited against imprisonment, or that a 1:1 crediting ratio
is required.
In his papers in support of his motion to terminate his
probation, Little argued that the “still-binding precedent” of
Lange and Bradley “dictates” the outcome in his “single-count,
alternative-options case.” J.A. 269–70. Although he quoted
relevant language in Jones, he argued only that Jones
“reaffirmed” “the continuing viability of Lange and Bradley”
for cases concerning “a single count of conviction.” J.A. 190,

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194. The government’s opposition to Little’s motion
specifically argued that, unlike the fine in Bradley, Little’s
sentence of probation could be credited against a future term of
imprisonment. The government also argued that the crediting
ratio need not be a day-to-day offset. Little’s reply did not
respond to those arguments. Then, at sentencing, Little’s only
objection was “to the ratio that was used” because he
“believe[d]” “a 5 to 1 ratio” was “a better ratio than the 18 to 1
that the [c]ourt used.” J.A. 346. Because Little never disputed
the availability of crediting and merely requested a different
crediting ratio, Little “failed to put the district court on notice
of the argument[s] he now raises” — i.e., that crediting is not
possible, or that a 1:1 ratio is required. United States v.
Mohammed, 89 F.4th 158, 163 (D.C. Cir. 2023).2
Little says that, even if he did not alert the district court to
the specific arguments he advances on appeal, his “argument
about crediting” is preserved as “simply a different theory in
support of the double jeopardy claim.” Oral Arg. 12:14–12:30.
To make that argument, Little relies on Yee v. City of
Escondido, 503 U.S. 519 (1992), in which the Supreme Court
held that “[o]nce a federal claim is properly presented, a party
can make any argument in support of that claim; parties are not
limited to the precise arguments they made below.” Id. at 534.
Although the cited statement in Yee is broad, our
subsequent cases have made clear that Yee’s holding is not as
sweeping as Little would like it to be. See Koch v. Cox, 489
F.3d 384, 391 (D.C. Cir. 2007) (citing Yee to allow a party to
“adduce[] additional support for his side of an issue upon which
the district court did rule, much like citing a case for the first
time on appeal”); Teva Pharms., USA, Inc. v. Leavitt, 548 F.3d
103, 105 (D.C. Cir. 2008) (citing Yee to allow a party to “refine
2 On appeal, Little does not renew his request for a 5:1 crediting
ratio.

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and clarify its analysis in light of the district court’s ruling”);
Defs. of Wildlife & Ctr. for Biological Diversity v. Jewell, 815
F.3d 1, 11–12 (D.C. Cir. 2016) (citing Yee and saying we
should not “reach the theory raised on appeal” if it “would
require this court to recast appellants’ position in the district
court” (cleaned up)).
Yee and its progeny clearly did not displace the general
rule in criminal cases that a defendant must “make known” to
the district court “his objection to the action of the court and
the grounds therefor.” Lewis, 433 F.2d at 1152. In United
States v. Stevens, 105 F.4th 473 (D.C. Cir. 2024), we rejected
a similar request to treat a defendant’s new argument as
preserved under Yee. In that case, the district court had applied
the Sentencing Guideline for aggravated assault, defined as
“felonious assault” involving “an intent to commit another
felony.” Id. at 476 (quoting U.S.S.G. § 2A2.2 cmt. n.1). The
defendant had argued before the district court that the
Guideline was inapplicable because he did not commit the
relevant felony with intent to commit “another felony.” Id. at
477 (emphasis in original). On appeal, the defendant added a
new theory: He claimed that he was not convicted of
“felonious assault” and only aided and abetted that offense. Id.
at 479. Even though the new argument challenged the same
Guideline addressed by the district court, we rejected the
defendant’s argument under Yee that he “simply ma[de] new
arguments in support of a preserved claim.” Id. at 479 n.10.
Instead, we held that the defendant “made two distinct claims
challenging different elements of the ‘aggravated assault’
commentary definition,” and reviewed the new argument only
for plain error. Id.
This case requires the same result. Little argued before the
district court that he should be discharged from further
punishment because Bradley applies to all “single-count,

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alternative-options case[s].” J.A. 270. That claim differs
significantly from the arguments that he now makes,
challenging the practice of crediting probation time against jail
time and the crediting ratio that was applied at his resentencing.
Little thus makes “distinct claims” on appeal that challenge
“different” aspects of the Bradley decision. See Stevens, 105
F.4th at 479 n.10. His specific argument invoking Bradley
before the district court did not preserve every possible
argument that flows from that case or from the Double
Jeopardy Clause.
Because Little’s arguments were “not raise[d] before the
district court,” we review them “only for plain error.” United
States v. Long, 997 F.3d 342, 353 (D.C. Cir. 2021). “Under
plain error review, we may reverse only if (1) the district court
committed error; (2) the error is plain; (3) the error affects the
defendant’s substantial rights; and (4) the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (cleaned up). Little’s arguments fail
because the alleged errors he identifies were not “plain” — i.e.,
there was no “controlling precedent on the issue or some other
absolutely clear legal norm.” United States v. Pyles, 862 F.3d
82, 88 (D.C. Cir. 2017) (cleaned up).
To begin, Little points to no Supreme Court case nor any
case from this circuit that addresses whether time served on
probation can be credited against time spent in prison. He
therefore fails to identify any “controlling precedent on the
issue.” Pyles, 862 F.3d at 88.
To the extent other courts have addressed the crediting
issue, the cases foreclose any claim of a “clear legal norm” that
forbids crediting probation time against sentences of
imprisonment. Pyles, 862 F.3d at 88. To the contrary, other
courts have endorsed that practice. For example, in United

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States v. Martin, 363 F.3d 25 (1st Cir. 2004), the court held that
the “impossibility of crediting [the sentences in Bradley] does
not apply to the alternative sentences of probation, including
home detention, and imprisonment.” Id. at 38. Because
“probation and imprisonment . . . each restrict[] a defendant’s
liberty (albeit to varying degrees) over a specific period of
time,” the court reasoned, the two “different types of
sentences” “are sufficient[ly similar] to allow crediting of
probation against imprisonment.” Id.; see also United States v.
Carpenter, 320 F.3d 334, 344–45 & n.10, 346 (2d Cir. 2003)
(instructing the district court to credit home detention already
served against future imprisonment); United States v. Miller,
991 F.2d 552, 554 (9th Cir. 1993) (same); United States v.
Lominac, 144 F.3d 309, 318 (4th Cir. 1998) (crediting time on
supervised release against future imprisonment). Thus, Little
has failed to establish that the district court “plainly” erred —
or erred at all — when it credited the time he spent on probation
against his new sentence of imprisonment.
Nor was it plain error for the district court to employ a fact-
specific crediting ratio. Little does not cite any “controlling
precedent on the issue” of how to credit probation against
imprisonment, Pyles, 862 F.3d at 88, and he concedes that there
is “disagreement on the methodology for providing credit,”
Little Br. 25. That alone precludes him from demonstrating
that there is an “absolutely clear legal norm” that supports a 1:1
crediting ratio. Pyles, 862 F.3d at 88.
Little pulls his suggested 1:1 ratio from an Iowa Supreme
Court case. See State v. Jepsen, 907 N.W.2d 495, 504 (Iowa
2018). But ample precedent supports not applying a 1:1 ratio
when crediting probation time. For example, in Martin, the
court said that “fully crediting probation against a subsequent
sentence of imprisonment does not require a day-to-day
offset,” observing that “time served in home detention is

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normally far less onerous than imprisonment.” 363 F.3d at 39
(cleaned up); see also Carpenter, 320 F.3d at 346 (noting the
court “would be puzzled if, on remand, the district court
reduced Carpenter’s term of imprisonment by more than half
the time he spent in home detention,” but declining to hold that
“a reduction of greater magnitude would be factually
insupportable, or a lesser reduction inappropriate”); Miller, 991
F.2d at 554 (noting a 1:1 ratio would not be inappropriate, but
directing the district court to balance the § 3553 factors when
deciding on its ratio); United States v. Derbes, 2004 WL
2203478, at *2 n.6 (D. Mass. Oct. 1, 2004) (treating “three days
of home detention and five days of probation as the equivalents
of a day in custody”). Because there is no controlling precedent
in this jurisdiction nor any clearly accepted rule for
determining crediting ratios, the district court’s decision to
conduct a fact-specific inquiry and to apply a 30-day credit for
Little’s 18 months of probation time was not plainly erroneous.
C.
Little argues that the district court was barred from
increasing his sentence because he had a legitimate expectation
of finality in the original sentence. Again, we disagree.
The Supreme Court has recognized that, under the Double
Jeopardy Clause, defendants have “legitimate expectation[s] of
finality” in their sentences. Jones, 491 U.S. at 385; see United
States v. DiFrancesco, 449 U.S. 117, 132–38 (1980). That
constitutionally protected interest allows defendants “to be free
from being compelled to live in a continuing state of anxiety
and insecurity.” United States v. Fogel, 829 F.2d 77, 88 (D.C.
Cir. 1987) (cleaned up). But courts “may permissibly increase
a [defendant’s] sentence” if “there is some circumstance which
undermines the legitimacy of that expectation.” Id. at 87.

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Here, Little may not claim an expectation of finality in a
sentence that he voluntarily appealed. Little does not dispute
that a defendant who successfully attacks a conviction or
sentence may generally be resentenced to increased
punishment. See Little Br. 33–35; see also Pearce, 395 U.S. at
719–20 (“Long-established constitutional doctrine makes clear
that, beyond the requirement [that punishment already exacted
must be fully ‘credited’], the guarantee against double jeopardy
imposes no restrictions upon the length of a sentence imposed
upon reconviction.”); Hayes, 249 F.2d at 517 (“[I]f the
sentence were invalid and defendant successfully attacked it,
he could be validly resentenced though the resentence
increased the punishment.”); Murphy v. Massachusetts, 177
U.S. 155, 158 (1900) (“[I]t is well settled that a convicted
person cannot by his own act avoid the jeopardy in which he
stands, and then assert it as a bar to subsequent jeopardy.”).
Because Little appealed his sentence and sought to have it
amended or vacated, he “is held to have waived his protection
against double jeopardy.” Hayes, 249 F.2d at 517.
Little’s reliance on United States v. Fogel, 829 F.2d 77
(D.C. Cir. 1987), is misplaced. That case stands for the
proposition that a court may not sua sponte change a
defendant’s final sentence; it has nothing to do with defendants
who themselves seek to alter their sentences by filing appeals.
In Fogel, the sentencing court increased Fogel’s sentence after
realizing it “made a mistake” in its original pronouncement.
829 F.2d at 80–81. We held that a court cannot, on its own
initiative, increase a defendant’s sentence because “after a
defendant is sentenced, he is entitled to have a legitimate
expectation that the district court has reviewed all of the
relevant circumstances, and has finally determined the severity
of the punishment that should be imposed.” Id. at 89. By
changing Fogel’s sentence without warning, the court
impermissibly “compelled” him to “live in a continuing state

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of anxiety and insecurity.” Id. at 88. Little, by contrast, chose
to appeal his sentence — he thereby precipitated and consented
to any state of uncertainty.
Nor are we persuaded by Little’s argument that he
challenged only a defect in his sentence (i.e., “that the statutory
scheme did not authorize both imprisonment and probation”),
and therefore did not waive his legitimate expectation of
finality in the length of his sentence. Little Br. 35 (emphasis in
original). We are unaware of any precedent that supports
carving out special treatment for certain types of legal
arguments challenging a sentence. When a defendant
successfully challenges his or her sentence or conviction, the
prior sentence is “wholly nullified and the slate wiped clean.”
Pearce, 395 U.S. at 721. With that clean slate, the district court
is permitted on resentencing “to impose whatever sentence may
be legally authorized, whether or not it is greater than the
sentence [previously] imposed.” Id. at 720.
That is especially appropriate when the original sentence
included interdependent components. In United States v.
Townsend, 178 F.3d 558 (D.C. Cir. 1999), we held that a
defendant sentenced on multiple counts of conviction “can
have no legitimate expectation of finality regarding the
sentence previously allocated to certain counts while
simultaneously challenging his sentence on other counts of the
package.” Id. at 570. That principle recognizes the “strong
likelihood that the district court [] craft[ed] a disposition in
which the sentences on the various counts form[ed] part of an
overall plan, and that if some counts are vacated, the judge
should be free to review the efficacy of what remains in light
of the original plan.” Id. at 567 (cleaned up); see also United
States v. Morris, 116 F.3d 501, 505 (D.C. Cir. 1997) (holding
defendants “could not — at the moment of launching their
challenges [against one sentence] — have entertained any

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reasonable expectation in the finality of their [non-challenged]
sentences” “given the interdependency” of the sentencing
package).
Little’s split sentence is analogous. When pronouncing
Little’s original sentence, the district court stated: “I believe
some term of imprisonment is essential in these cases now to
reflect the seriousness of the offense, to promote respect for the
law and to provide just punishment for the offense.” J.A. 149.
Then, because “the [c]ourt [did] not have confidence that the
same [conduct] would not happen in the next election cycle,”
it included a probationary term so that Little “[would] not be
without court supervision during the next election cycle.” J.A.
150. The district court’s decision to impose a short prison
sentence was intertwined with its decision to impose a longer
term of probation. After we made clear that a term of
imprisonment and a term of probation could not both be
imposed, the district court was allowed to “review the efficacy
of what remains [of the sentence] in light of the original plan.”
Townsend, 178 F.3d at 567; accord United States v. Versaglio,
85 F.3d 943, 949 (2d Cir. 1996) (setting aside a term of
imprisonment in a split-sentence case but remanding for the
sentencing court to “consider[] whether to make an upward
adjustment in the amount of the fine”).3
* * *
3 Little argues for the first time in his reply brief that the
government was required to cross-appeal to provide Little with
notice that pursuit of his own appeal would expose him to a higher
sentence. See Little Reply Br. 5. Putting aside the dubious logic of
that argument, it is forfeited. See Fore River Residents Against the
Compressor Station v. FERC, 77 F.4th 882, 889 (D.C. Cir. 2023)
(“Arguments raised for the first time in a reply brief are forfeited.”).

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We conclude that the Double Jeopardy Clause was not
violated when Little was subjected to additional punishment
upon his resentencing. The district court properly exercised its
discretion to impose a sentence that accounted for all relevant
sentencing factors. The new sentence was lawful because the
district court provided credit for the time that Little had served
on the original sentence — both in prison and on probation —
and neither the original sentence nor the new sentence
exceeded the statutory maximum. We further conclude that the
district court did not plainly err when it provided a 30-day
credit to account for the 18 months that Little spent on
probation; and that Little had no legitimate expectation of
finality in his original sentence because he appealed that
sentence. We therefore affirm the judgment of the district
court.
So ordered.

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