Unpublished Disposition, 905 F.2d 1541 (9th Cir. 1990)

MEMORANDUM^** 

Entendencia appeals his sentence of twenty years (240 months) for bank robbery. He contends (1) that the district court erred by failing to allow for a two-level reduction for acceptance of responsibility and (2) that the "career offenders" and the "crime of violence" provisions of the Guidelines are unconstitutional. We reject these arguments and affirm his sentence.

"CRIMES OF VIOLENCE" AS BASIS FOR CAREER OFFENDER STATUS

Entendencia contends that the definition of "crimes of violence" in the Sentencing Guidelines is unconstitutionally vague because he had no notice that burglary would be included as a crime of violence sufficient to trigger the career offender provision. Appellant cites no authority for the proposition that burglary should not be so characterized, relying instead on the assertion that a property offense cannot also be a crime of violence. This argument is without merit. Although the Guidelines did not specifically include burglary as a crime of violence prior to the November 1, 1989 amendments, see Sec. 4B1.1, the Application Notes for Sec. 4B1.1 provided that " [c]onviction for burglary of a dwelling would be covered; conviction for burglary of other structures would not be covered." This Application Note is clear, and provides adequate notice that burglary would be considered a "crime of violence" under the Guidelines. Accordingly, the district court properly found that the prior convictions for burglary satisfied the "career offender" requirements. See Sec. 4B1.1 and accompanying Application Notes.

FAILURE TO PERMIT A TWO-LEVEL REDUCTION

We now turn to appellant's contention that the court erred by failing to allow for acceptance of responsibility in determining his sentence under the Guidelines. Appellant maintains that he should receive the benefit of the November 1, 1989 amendments to the Guidelines, which provide that " [i]f an adjustment from Sec. 3E1.1 (Acceptance of Responsibility) applies, decrease the offense level by 2 levels." Sec. 4B1.1. We disagree.

The question directly posed is whether a more lenient Guideline range should apply retroactively to a person sentenced prior to the effective date of the amendments.¹  Section 1B1.10(a) directly speaks to this issue. That section provides that:

Where a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the guidelines listed in subsection (d) below, a reduction in the defendant's term of imprisonment may be considered under 18 U.S.C. § 3582(c) (2). If none of the amendments listed in subsection (d) is applicable, a reduction in the defendant's term of imprisonment under 18 U.S.C. § 3582(c) (2) is not consistent with this policy statement.

Guidelines Sec. 1B1.10(a).

The Sec. 1B1.10(d) triggering provision states that the " [a]mendments covered by this policy statement are listed in Appendix C as follows: 126, 130, 156, 176, and 269." None of these amendments addresses the career offender provision applicable to the appellant. Given the explicit directive of Sec. 1B1.10 not to apply any other amendments retroactively, we reject appellant's suggestion to remand for such a determination in this case.² 

DUE PROCESS CLAIMS UNDER THE CAREER OFFENDER PROVISION

Appellant argues that two aspects of the Guidelines have violated his right to due process of law. First, he contends that by failing to allow for a two-level reduction for acceptance of responsibility, the Guidelines abridge his right to have a mitigating factor considered in his favor. Moreover, he maintains that a rigid application of the Guidelines impinges on his right to be distinguished from a career offender whose prior offenses were much more serious than his.

These objections raise the issue of the district court's ability to individualize sentences. We have rejected similar contentions in slightly different circumstances. See, e.g., United States v. Brady, 895 F.2d 538, 540 (9th Cir. 1990) (observing that " [b]y requiring the sentencing court to consider all relevant factors and to articulate reasons for departing from such consideration, the Guidelines potentially pose fewer due process concerns than the pre-Guidelines sentencing practice of allowing nearly unfettered judicial discretion"); see also United States v. Rexford, No. 89-10199, slip op. at 5289, 5292 (9th Cir. May 24, 1990). At any rate, there is no constitutional right to individualized sentencing when the death penalty is not involved. United States v. Belgard, 894 F.2d 1092, 1100 (9th Cir. 1990). Appellant's facial challenge to the Guidelines must therefore fail. Moreover, because he does not raise any specific objection to the application of the Guidelines in his individual circumstances, we conclude that they are not unconstitutional as applied to him.

AFFIRMED.