Unpublished Dispositionunited States of America, Plaintiff-appellant, v. Dwayne Andre Johnson, Defendant-appellee, 871 F.2d 1089 (6th Cir. 1989)

ORDER

The government appeals from the district court's judgment and sentence in this criminal case. 18 U.S.C. § 3742(b). 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 needed. Fed. R. App. P. 34(a).

Johnson pled guilty to two counts of possession with intent to distribute a controlled substance and one count of carrying a firearm during drug trafficking. 21 U.S.C. § 841(a) (1); 21 U.S.C. § 924(c). Upon Johnson's motion, the district court held that the Sentencing Reform Act of 1984 was unconstitutional as a violation of the doctrine of separation of powers. The court then sentenced Johnson 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.

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.