Unpublished Disposition, 894 F.2d 410 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 894 F.2d 410 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Marco CONTRERAS-ESPINOSA, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Javier CONTRERAS-ESPINOSA, Defendant-Appellant.

Nos. 89-50207, 89-50208.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 9, 1990.* Decided Jan. 19, 1990.

Before FARRIS, BOOCHEVER and NOONAN, Circuit Judges.

MEMORANDUM** 

Marco and Javier Contreras-Espinosa claim they were denied due process of law by the district court's decision to sentence them under the Guidelines. Their crimes occurred after this circuit ruled the Guidelines were unconstitutional in Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988). The Government delayed negotiating their plea agreements until after the Supreme Court's decision upholding the Guidelines in United States v. Mistretta, 109 S. Ct. 647 (1989), but recommended that they be sentenced under pre-Guidelines law. The district court refused and sentenced them under the Guidelines.

As we recently held, "the Guidelines remained a legally enacted statutory sentencing scheme throughout the five-month period between August 23, 1988, and January 18, 1989." United States v. Gonzalez-Sandoval, No. 89-50174, slip op. at ---- (9th Cir. Jan. __, 1990).

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and 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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