Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1990)

MEMORANDUM^* 

Harry Blanco challenges his sentence under the Sentencing Guidelines, entered following his plea of guilty to possession of cocaine with intent to distribute in violation of 21 U.S.C. § 846. Specifically, Blanco challenges the constitutionality of applying the Guidelines to him. Each of his three legal arguments has already been foreclosed in this circuit. Therefore we affirm.

On September 23, 1988, Blanco was arrested after delivering three kilograms of cocaine to undercover agents, and on January 6, 1989, he pleaded guilty to one count of possession of cocaine with intent to distribute. At the time that Blanco committed his crime and pleaded guilty, the Sentencing Guidelines had been declared unconstitutional in this circuit as violative of separation of powers. See Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.), vacated sub nom., United States v. Chavez-Sanchez, 109 S. Ct. 859 (1988), on remand, 871 F.2d 104 (9th Cir. 1989). On January 18, 1989, the Supreme Court decided Mistretta v. United States, 109 S. Ct. 647 (1989), which effectively overruled Gubiensio. On March 17, 1989, Blanco was sentenced under the Guidelines to 72 months of incarceration.

Blanco first argues that application of the Sentencing Guidelines to crimes that occurred when Gubiensio was the law of the Ninth Circuit violates the ex post facto clause of the Constitution. This argument, however, was presented to and rejected by this court in United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1052-53 (9th Cir. 1990). In Gonzalez, the defendant, like Blanco, committed his crime while Gubiensio was still the law of the circuit. Application of the Sentencing Guidelines to Gonzalez violated neither the ex post facto clause, nor the due process clause of the fifth amendment. Id. at 1052.

Blanco also challenges the application of the Guidelines to him on fifth amendment grounds. Specifically, he argues that because he pleaded guilty while Gubiensio was the law of the circuit, it is a violation of his due process rights to sentence him under the Guidelines. In United States v. Kincaid, 898 F.2d 110, 111 (9th Cir. 1990), this court rejected that precise argument. In Kincaid, Gonzalez was held to apply "with equal force to a plea entered after our decision in Gubiensio-Ortiz and before the Supreme Court's decision in Mistretta." Id.

Finally, Blanco makes an independent argument that the Sentencing Guidelines violate fifth amendment due process because the "mechanical sentencing" under the Guidelines unduly limits sentencing discretion. However, this argument was foreclosed by United States v. Brady, 895 F.2d 538 (9th Cir. 1990), where the defendant presented almost verbatim the same argument that Blanco makes here. See also United States v. Wilson, No. 89-50236, slip op. 3423 (9th Cir. April 6, 1990) (preponderance standard of proof of Sentencing Guidelines complies with due process requirement for factual accuracy).

For these reasons, the conviction is AFFIRMED.