Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1991)

MEMORANDUM^** 

Randy Toran Johnson appeals his sentence imposed under the United States Sentencing Guidelines ("Guidelines") following a court trial in which he was convicted of distributing a controlled substance in violation of 21 U.S.C. § 841(a) (1). Johnson contends that the Guidelines are unconstitutional because, on their face, they deny due process. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.

We review de novo whether the Guidelines violate fifth amendment guarantees of due process. United States v. Brady, 895 F.2d 538, 539 (9th Cir. 1990). This court has previously held that the Guidelines do not, on their face, violate due process guarantees because they allegedly interfere with individualized sentencing. Id. at 539-43. Accordingly, Johnson's arguments along these lines are rejected.

Johnson also argues that, on its face, the Guidelines' provision for acceptance of responsibility, U.S.S.G. Sec. 3E1.1, violates due process by chilling a defendant's constitutional right against self-incrimination at various stages of federal criminal proceedings. We also reject this contention. " [I]n determining a defendant's acceptance of responsibility, a sentencing court cannot consider against a defendant any constitutionally protected conduct, whether it occurs before or after the entry of a plea." United States v. Watt, 910 F.2d 587, 592 (9th Cir. 1990). A defendant's right against self-incrimination is not chilled by section 3E1.1.

AFFIRMED.