Unpublished Disposition, 897 F.2d 534 (9th Cir. 1990)

No. 89-30075.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and DAVID R. NELSON, Circuit Judges, and STEPHEN V. WILSON, United States District Judge.^* 

ORDER

On December 29, 1989, submission of this case was deferred pending this court's decision in United States v. Gonzalez-Sandoval, No. 89-50174 (9th Cir. filed Jan. 18, 1990). Since the decision in Gonzalez-Sandoval has now been filed, we order this case submitted and affirm the district court.

Both Gonzalez-Sandoval and the instant case concern the retroactive application of the United States Sentencing Commission Guidelines Manual ("Guidelines") to offenses committed prior to the Supreme Court's decision upholding the constitutionality of the Guidelines in Mistretta v. United States, 109 S. Ct. 647 (1989), but after this court's contrary decision in Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988). In this regard, the Gonzalez-Sandoval court found that the district judge did not err in sentencing the criminal defendant in accordance with the Guidelines as the defendant "was on notice that the Guidelines were in effect and that the Supreme Court might vacate the Ninth Circuit decision." Accordingly, the court rejected appellant's due process claims and held that "the Guidelines remained a legally enacted statutory sentencing scheme throughout the five-month period between [Gubiensio-Ortiz and Mistretta ]."

In light of the conclusions reached by the Gonzalez-Sandoval court with respect to the retroactive application of the Guidelines, we are compelled to affirm the sentence imposed by the district court in the instant case.

IT IS SO ORDERED.