Unpublished Disposition, 911 F.2d 739 (9th Cir. 1989)
Annotate this CaseUNITED STATES of America Plaintiff-Appellee,v.David PEREZ-ROCHA and Ismael Perez-Rocha, Defendants-Appellants.
Nos. 89-30135, 89-30138.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 3, 1990.* Decided Aug. 7, 1990.
Before WALLACE, CANBY and RYMER, Circuit Judges.
MEMORANDUM**
David and Ismael Perez-Rocha appeal their sentences following their convictions after a jury trial for distribution of heroin, possession of cocaine with intent to distribute, and possession of a firearm during a drug trafficking offense, in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B) (ii) and 18 U.S.C. § 924(c) (1). They contend that the district court erred by sentencing them under the Sentencing Guidelines. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
David and Ismael originally pleaded guilty on November 21, 1988, pursuant to plea agreements. These agreements provided for sentencing under pre-Guidelines law because this court had found the Guidelines unconstitutional in Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988), vacated, 109 S. Ct. 859 (1989), on remand, 871 F.2d 104 (9th Cir. 1989). Before the sentencing hearing, the Supreme Court held the Guidelines constitutional in Mistretta v. United States, 488 U.S. 361 (1989). The district court concluded that in light of Mistretta, it was required to sentence David and Ismael under the Guidelines, despite their plea agreements. The court permitted the defendants to withdraw their guilty pleas. After a jury trial, David and Ismael were convicted of distribution of heroin, possession of cocaine with intent to distribute, and possession of a firearm during a drug trafficking offense. On May 8, 1989, the district court sentenced David and Ismael under the Guidelines.1
David and Ismael contend that the district court erred by (1) not sentencing them under pre-Guidelines law pursuant to their plea agreements, and by (2) applying Mistretta retroactively. These contentions lack merit.
We review the district court's application of the Guidelines de novo. United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir. 1989).
We have upheld the retroactive application of Mistretta to pleas entered during the window period between Gubiensio and Mistretta. United States v. Kincaid, 898 F.2d 110, 111 (9th Cir. 1990). In any case, David and Ismael withdrew their guilty pleas and were convicted after a jury trial. Thus, the district court properly sentenced them under the Guidelines.
For these reasons, the district court's judgment is
AFFIRMED.
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
The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
The court sentenced David to two concurrent 80-month terms, one consecutive 60-month term, and four years supervised release. The district court sentenced Ismael to two concurrent 130-month terms, one consecutive 60-month term, and eight years supervised release
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