Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1989)

MEMORANDUM^** 

STATEMENT OF THE CASE

Appellant Alejandro Sigueiros-Lopez, a.k.a. Armando "Alex" Martinez-Cortez, appeals his sentence on the grounds that the Sentencing Guidelines violate due process, the separation of powers doctrine, various fifth amendment protections, the presentment clause, and the applicable congressional mandate. Appellant also challenges the imposition of a $17,500 fine on the ground that the district court did not inquire into his financial ability to pay. We affirm.¹ 

FACTS

On September 6, 1989, appellant Armando Martinez-Cortez entered a plea of guilty to Count 4 of a superceding information charging possession of approximately 466.1 kilograms of cocaine with intent to distribute, and aiding and abetting, in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. As part of the plea agreement, the government agreed that the base offense level for the count of conviction was thirty-six and that appellant was entitled to a reduction of 2 levels for acceptance of responsibility. U.S.S.G. Sec. 3E1.1. The government also agreed to recommend the low end of the guidelines range for the offense level of 34, i.e., 151 months in custody. The probation office calculated the guideline range for the offense of conviction at 151-188 months and recommended 188 months in custody.

At the time of sentencing, appellant was sixty-two years old. Appellant requested a downward departure to 10 years (the statutory minimum) based on two grounds: (1) the probation report was based upon comments which were both untruthful and uncorroborated; and (2) the trial court could consider appellant's advanced age as a ground for departure. The court did not grant this request and instead imposed a sentence of imprisonment of 151 months to be followed by 5 years of supervised probation. The trial court also imposed a $17,500 fine, to be paid immediately.

On appeal, Martinez-Cortez asserts that the Guidelines are unconstitutional and therefore we must vacate his sentence. Appellant also argues that the $17,500 fine must be stricken on the ground that the district court did not inquire into his ability to pay.

DISCUSSION

Appellant argues that the Sentencing Guidelines violate due process by establishing a mechanical formula which ignores relevant mitigating factors and thus fails to provide an individualized sentence. As we have held on a number of occasions, however, the Sentencing Guidelines do not violate the right to individualized sentencing. United States v. Litteral, 910 F.2d 547 (9th Cir. 1990); United States v. Jones, 907 F.2d 929, 930 (9th Cir. 1990); United States v. Rexford, 903 F.2d 1280 (9th Cir. 1990); United States v. Brady, 895 F.2d 538, 541 (9th Cir. 1990).

Likewise, we have also held that the Guidelines do not violate due process by eliminating judicial discretion in sentencing. United States v. Belgard, 894 F.2d 1092 (9th Cir. 1990).²  Appellant's contention that the use of past sentencing averages to determine sentences violates due process has fared no better. Litteral, 910 F.2d at 552-53.

Appellant next argues that the Guidelines violate due process and the separation of powers doctrine by creating a system whereby the prosecuting attorney not only charges defendants but effectively sentences them as well. Again, we have already rejected this theory. United States v. Sanchez, 908 F.2d 1443 (9th Cir. 1990). Appellant's argument that the Guidelines violate the fifth amendment right against self-incrimination has likewise been rejected. United States v. Gonzalez, 897 F.2d 1018, 1021 (9th Cir. 1990). We have found appellant's argument that the Guidelines violate the presentment clause equally unpersuasive. United States v. Scampini, 911 F.2d 350, 353-54 (9th Cir. 1990); Litteral, 910 F.2d at 551-52.

Appellant's contention that the Guidelines violate their statutory mandate to apply a "least restrictive alternative" test in sentencing has likewise been rejected by this court. United States v. Belgard, 894 F.2d at 1100.³  By failing to object at the time of sentencing, appellant has waived his argument that the district court failed to inquire into his ability to pay. United States v. Seminole, 882 F.2d 441, 444 (9th Cir. 1988).

Finally, appellant's assertion that the Guidelines contravene their congressional mandate by failing to take into account "offender characteristics" is simply a restatement of his "individualized sentence" argument and we reject it on that ground.

AFFIRMED.