Unpublished Disposition, 919 F.2d 146 (9th Cir. 1990)

MEMORANDUM^** 

Mary Annette Ellis ("Ellis") appeals her sentence under the sentencing guidelines. She contends that the district court erroneously concluded that it could not grant probation under the sentencing guidelines. We affirm.

BACKGROUND

Ellis was indicted with a co-defendant for possession with intent to distribute cocaine base. She failed to appear for pretrial motions and was subsequently arrested in Georgia. Ellis entered a guilty plea to charges that she had delivered controlled substances, and that she had violated her conditional release by failing to appear in court. The underlying indictment was dismissed.

At sentencing, the court stated, " [I]f I felt I could legally, I would put you on probation ... But I do not believe that I am allowed to do so under the Guideline."

Ellis appeals the district court's determination that she was not eligible for probation under the Sentencing Guidelines. Appeal was made to this court pursuant to 18 U.S.C. § 3742(a).

STANDARD OF REVIEW

Legal issues regarding the application of the Guidelines are reviewed de novo. United States v. Wills, 881 F.2d 823, 825 (9th Cir. 1989).

ANALYSIS

Ellis is not eligible for probation. Although 18 U.S.C. § 3561 does not expressly prohibit probation in Ellis' case, U.S.S.G. 5B1.1 does prohibit probation because the minimum term prescribed by the Guidelines for Ellis' offense is greater than six months.¹ 

Ellis argues that probation in her case is a discretionary matter when viewing the statutory scheme as a whole. She asserts that the Guidelines are in conflict with federal statutes and that the statutes control. However, we find no such conflict. None of the statutes cited by Ellis mandate that a court have discretionary power to impose probation.

Under 28 U.S.C. § 994(a) (J) the Sentencing Commission is required to determine, consistent with statutes, what offenses should receive probation as an option. The Commission limited probation to a certain set of cases. Ellis does not have such a case. Her sentencing range is 15 to 21 months which is greater than the sixth month ceiling imposed by U.S.S.G. 5B1.1. The district court sentenced her to 15 months, the minimum term.

In United States v. Belgard, 894 F.2d 1092 (9th Cir. 1990), this court held that the Guidelines' restrictions on probation were not unconstitutional. Ellis asserts that the court failed to consider legislative history and all relevant sections of Title 18 in making its determination. Legislative history, however, indicates that the Statutory Reform Act created no presumption for or against probation and that the Guidelines could delineate when probation is appropriate. 1984 U.S. Code, Congressional and Administrative News, 3182, 3273.

Ellis draws an analogy between her situation and that in United States v. Wills, 881 F.2d 823 (9th Cir. 1989), in which this court held that a judge had discretion to impose consecutive or concurrent sentences under 18 U.S.C. § 3584(a) although U.S.S.G. 5G1.3 arguably limited a judge's discretion. We held in that case, as we hold in this case, that the Guidelines must be construed as consistent with statutory law. Because federal statutes do not expressly confer discretion upon the trial court to grant probation, the Guidelines can regulate in this area.

Affirmed.