Unpublished Disposition, 914 F.2d 264 (9th Cir. 1989)

MEMORANDUM^** 

Joel Mora-Mora, a federal prisoner, appeals pro se the district court's order denying his 28 U.S.C. § 2255 motion to modify his sentence. Mora-Mora contends that: (1) the district court erred by sentencing him under the Federal Sentencing Guidelines; (2) the Guidelines violate due process by denying him an individualized sentence; and (3) his sentence violates the terms of his plea agreement. We affirm.

In December 1988, Mora-Mora pleaded guilty to possession with intent to distribute of approximately 85 pounds of marijuana, in violation of 21 U.S.C. §§ 841(a) (1) and 18 U.S.C. § 2. Mora-Mora committed this offense in July 1988. In February 1989, the district court departed downward from the Sentencing Guideline range of 70-87 months, and sentenced Mora-Mora to 60 months of imprisonment to be followed by 3 years of supervised release.

The district court correctly denied Mora-Mora's section 2255 motion. First, because the Sentencing Guidelines apply to crimes committed after November 1, 1987, and Mora-Mora committed the offense in July 1988, he was subject to sentencing under the Guidelines. Before Mora-Mora entered his guilty plea, however, this court held the Guidelines to be unconstitutional. See Gubienso-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988). On January 18, 1989, after Mora-Mora's plea but before his sentencing, the Supreme Court upheld the constitutionality of the Guidelines. See Mistretta v. United States, 488 U.S. 361 (1989). Mora-Mora's argument that the Guidelines should not be applied to him because he entered his guilty plea during the period when Gubienso-Ortiz was the law of the circuit has been expressly rejected. See United States v. Kincaid, 898 F.2d 110, 111 (9th Cir. 1990).

Second, the Guidelines do not violate due process by infringing on Mora-Mora's right to an individualized sentence. See United States v. Brady, 895 F.2d 538, 540-41 (9th Cir. 1990).

Finally, there is no evidence in the record to support Mora-Mora's claim that during plea negotiations the government indicated that 6-12 months would be an "appropriate" sentence. Moreover, before accepting Mora-Mora's guilty plea, the district court informed him that he faced a maximum sentence of five years imprisonment to be followed by a minimum of two years of supervised release.

AFFIRMED.