Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1989)

MEMORANDUM^** 

OVERVIEW

Appellant Antonio De Leon-Muniz was convicted of importation of heroin and possession of heroin with intent to distribute. On appeal, De Leon-Muniz challenges the validity of the sentence imposed by the district court. He contends that (1) the sentence improperly punishes him a second time for previous criminal conduct, in violation of his fifth amendment protection from double jeopardy, and that (2) the sentence is constitutionally defective since the district court relied solely on the sentencing guidelines promulgated under the Sentencing Act of 1984. We affirm the district court judgment.

FACTS

Antonio De Leon-Muniz was convicted of importation of heroin and possession of heroin with intent to distribute, in violation of 21 U.S.C. §§ 952, 960. Upon conviction, the district court referred De Leon-Muniz's case to the Probation Department for preparation of a sentencing report in accordance with the sentencing guidelines promulgated pursuant to the Sentencing Reform Act of 1984 [hereinafter "Sentencing Guidelines"]. In preparing the report, the Probation Department considered the fact that De Leon-Muniz had been subjected to an administrative proceeding and fined $300 by the U.S. Customs Department for concealing 0.284 grams of marijuana in a vehicle he drove into the United States. The Probation Department recommended that De Leon-Muniz receive a sentence of 57 months in custody.

The district court decided to follow the Probation Department's recommendation and impose a 57-month sentence. Recognizing that it had previously found the Sentencing Guidelines unconstitutional, the court stated that while embracing the recommendation of the Probation Department report, it was exercising its sentencing discretion under the law prior to the enactment of the Sentencing Guidelines: "Basically the sentence that I am giving to him would be the same under the new law or the old law.... Essentially I am exercising my discretion therefore under the old law to follow generally the recommendation of Probation in this case."

DISCUSSION

First, De Leon Muniz contends that when the district court determined the appropriate sentence for his offense, it violated double jeopardy principles by considering the facts relating to the previous United States Customs Department administrative proceeding in which he was charged with possession and concealment of marijuana. This contention lacks merit.

While it is questionable whether De Leon-Muniz was placed "in jeopardy" for fifth amendment purposes at the administrative proceeding, it is clear that De Leon-Muniz was not placed "in jeopardy" a second time for the marijuana-related charge by the district court's consideration (through the Probation Department report) of the Customs Department administrative adjudication. It is well settled that the double jeopardy clause does not preclude a trial court from considering past conduct for which the defendant has been prosecuted in determining the appropriate sentence for a separate offense. See United States v. Morgan, 595 F.2d 1134 (9th Cir. 1979) (consideration of facts relating to a prior acquittal for purpose of determining proper sentence for separate offense does not violate double jeopardy); Anderson v. Wilson, 397 F.2d 255 (9th Cir. 1968), cert. denied, 394 U.S. 1019 (1969) (consideration of prior convictions when sentencing does not offend double jeopardy principles). Therefore, it is clear that the district court's consideration of the facts relating to the earlier administrative adjudication did not constitute double jeopardy.

Second, De Leon-Muniz contends that since the district court relied solely on the Probation Department report prepared in accordance with the unconstitutional Sentencing Guidelines, see Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988), vacated sub nom. United States v. Chavez-Sanchez, 57 U.S.L.W. 3486 (U.S. January 24, 1989), the sentence is constitutionally invalid and should be set aside. De Leon-Muniz may be correct in his assertion that, notwithstanding the district court's proclamation to the contrary, he was effectively sentenced under the Sentencing Guidelines. However, we need not reach a conclusion on this issue. In Mistretta v. United States, 57 U.S.L.W. 4102 (U.S. January 17, 1989), the Supreme Court declared that the Sentencing Reform Act of 1984 is constitutional. Thus, even if De Leon-Muniz was, as he contends, effectively sentenced under the Sentencing Guidelines, this fact no longer serves as a valid basis for setting aside the sentence.

AFFIRMED.