Unpublished Disposition, 894 F.2d 1344 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 894 F.2d 1344 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Cordell SMALL, Defendant-Appellant.

No. 88-3125.

United States Court of Appeals, Ninth Circuit.

Submitted July 25, 1989.* Decided Jan. 26, 1990.

Before JAMES R. BROWNING, KOZINSKI and RYMER, Circuit Judges.

MEMORANDUM** 

The federal sentencing guidelines are constitutional, Mistretta v. United States, 109 SCt 647 (1989), and defendant does not argue that the district court misapplied them. Because of uncertainty about the constitutionality of the guidelines, the district court sentenced defendant in the alternative under 18 USC Sec. 4205(a). As his sentence under the guidelines is valid, defendant's challenge to the alternative sentence is moot.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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