Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Robert W. Tidwell, Defendant-appellant, 871 F.2d 1089 (6th Cir. 1989)

ORDER

The defendant appeals from the district court's judgment and sentence in this criminal case. 18 U.S.C. § 3742(a) (3) (A). The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, the panel unanimously agrees that oral argument is not necessary. Fed. R. App. P. 34(a).

After a guilty plea, the district court convicted the defendant of four counts of transporting and receiving pornographic matter involving children in interstate commerce. 18 U.S.C. § 2252(a) (1) and (2). The Sentencing Reform Act of 1984 applied to two of these counts. However, the judges of the Middle District of Tennessee had previously declared the Sentencing Reform Act to be unconstitutional. United States v. Williams, No. 3-88-00014 (M.D. Tenn. June 23, 1988) (en banc). Therefore, the district court did not impose sentence under the Sentencing Reform Act, but rather imposed it under the old law.

The Supreme Court has now decided the case of Mistretta v. United States, 109 S. Ct. 647 (1989). In that case, the Court held that the Sentencing Reform Act was constitutional. Therefore, we must vacate the judgment of the district court in this case and remand for resentencing on the two counts covered by the Act.

In her brief, the Assistant United States District Attorney argues that the district court's sentence can be affirmed because the aggravating circumstances in this case justify a departure from the appropriate guideline sentence. We note that the Sentencing Commission believes that judges will not depart from the guidelines very often; such cases will be highly unusual. U.S. SENTENCING COMMISSION, GUIDELINES MANUAL, Ch. 1, Sec. 4(b) (1987). Therefore, the appropriate action regarding this appeal is to send the case back to the district court for further consideration.

The judgment of the district court is vacated and the case is remanded under Rule 9(b) (6), Rules of the Sixth Circuit, for further proceedings.