Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1989)

No. 89-50312.

United States Court of Appeals, Ninth Circuit.

Before Dorothy W. NELSON and REINHARDT, Circuit Judges; TANNER,^**  District Judge.

MEMORANDUM^*** 

I INTRODUCTION

Andres Alvarez-Lopez appeals the ruling by the district court that it lacked jurisdiction to hear his motion for reduction of sentence pursuant to Fed. R. Crim. P. 35(b). We review de novo a district court's determination of its jurisdiction. United States v. Layton, 855 F.2d 1388, 1394 (9th Cir. 1988) cert. denied, 109 S. Ct. 1178 (1989). We affirm.

II FACTS AND PROCEDURAL HISTORY

On April 12, 1988 Alvarez-Lopez was arrested for possession and distribution of heroin. On April 27, 1988 a six-count Indictment was returned against Alvarez-Lopez and a co-defendant, Salvador Vargas Ochoa. After an initial plea of not guilty, Alvarez-Lopez changed his plea of not guilty to guilty as to Count Four of the Indictment, and on September 29, 1988 he was sentenced to the custody of the Attorney General for 110 months.

On January 18, 1989, appellant filed a motion pursuant to Fed. R. Crim. P. 35(b) seeking a reduction of his sentence. January 18, 1989 is also the date on which the United States Supreme Court decided Mistretta v. United States, 488 U.S. 361 (1989), and held the Sentencing Reform Act of 1984, 28 U.S.C. §§ 991-998, see also 18 U.S.C. § 3551 et seq., (the "Act") to be constitutional. On June 15, 1989, the district court denied Alvarez-Lopez' motion for reduction of sentence on the basis that it lacked jurisdiction to hear the motion. This timely appeal of the denial of that motion followed.

III DISCUSSION

Alvarez-Lopez argues that the application to him of Fed. R. Crim. P. 35 as amended by Pub. L. 98-473, 98 Stat. 2015 (1984) violates the ex post facto clause of the United States Constitution, Article I, Section 9, Cl.3. We disagree.

The "Act" which created the sentencing guidelines also amended Fed. R. Crim. P. 35. See United States v. Eatinger, 902 F.2d 1383, 1384 (9th Cir. 1990). The amended Rule 35 took effect on November 1, 1987. See Fed. R. Crim. P. 35. Prior to the amendment either party or the court could move to reduce a sentence pursuant to section (b) of the rule. As the rule now stands, only the government can move the district court to reduce a legal sentence previously imposed. See Fed. R. Crim. P. 35(b).

In United States v. Kane, 876 F.2d 734, 735-739 (9th Cir. 1989) cert. denied, 110 S. Ct. 173 (1989), we applied the holding of Mistretta retroactively. In Eatinger, 902 F.2d at 1384-1385, we applied the amended Rule 35 to a defendant who pleaded guilty and was sentenced in the "window" period between Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988) (declaring sentencing guidelines unconstitutional) vacated, U.S. v. Chavez-Sanchez --- U.S. ----, 109 S. Ct. 859 (1989) and Mistretta, but who made a Rule 35 motion after the decision in Mistretta.

The retroactive application of judicial decisions is the rule rather than the exception. Kane, 876 F.2d at 735-736.

This court considers three factors in determining whether an exception should be made to the general rule that judicial decisions are applied retroactively: "(1) whether the decision establishes a new principle of law, (2) whether retroactive application will further or retard the purposes of the rule in question, and (3) whether applying the new decision will produce substantially inequitable results."

United States v. Gonzalez-Sandoval, 894 F.2d 1043 (9th Cir. 1990) quoting Kane, 876 F.2d at 736 (citation omitted).

In applying those considerations to this case, we find no reason to make an exception here. First, Mistretta did not establish a new principle of law, it only reinstated a validly enacted sentencing scheme. Second, retroactive application of Mistretta to Rule 35 motions furthers the "Act's" goal of standardizing sentencing in the federal courts. And, lastly, the retroactive application of Mistretta here will not produce inequitable results because Alvarez-Lopez acquired no "reasonable expectation" of the right to request a reduction under a repealed rule. Kane, 876 F.2d at 736.

Without deciding whether Alvarez-Lopez' motion fits within the Gubiensio-Ortiz--Mistretta window period, we hold that the district court was correct in ruling that it lacked jurisdiction to hear Alvarez-Lopez' motion.

AFFIRMED