Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1991)

MEMORANDUM^** 

Timothy Jack Oller appeals his sentence of 130 months in prison and five years supervised release for conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. § 841(a) (1). Oller challenges his sentence based upon (1) the ex post facto clause of the Constitution, (2) the disparity in sentence with his co-defendants, (3) ineffective assistance of counsel, and (4) the failure to receive a speedy trial. We affirm.

Appellant argues his sentence under the Sentencing Guidelines violated the ex post facto clause. Oller contends he received a longer prison term because he was sentenced after the Supreme Court reinstated the guidelines, rather than during the period the guidelines were not in effect (August 23, 1988 to January 18, 1989).

Appellant's argument is meritless. The district court did not sentence appellant under an amended version of the guidelines that called for a longer sentence. Cf. United States v. Graham, 731 F. Supp. 944 (C.D. Cal. 1990). Rather, the district court simply applied the version of the guidelines that had been reinstated by the United States Supreme Court's decision upholding their validity. See Mistretta v. United States, 488 U.S. 361 (1989). We have held Mistretta may be applied retroactively to sentence defendants under the guidelines. United States v. Kane, 876 F.2d 734, 735-36 (9th Cir. 1989).

Moreover, even if appellant had been sentenced during the time the guidelines were not in effect, the sentencing judge could still have sentenced him to the statutory maximum sentence of twenty years imprisonment. Pursuant to a plea bargain, appellant was sentenced under the guidelines to 130 months, the lowest sentence in the applicable range. Therefore, it is not clear that Oller received a harsher sentence as a result of the guidelines.

Second, Oller challenges the disparity between his sentence and the sentences his co-defendants received. Specifically, appellant maintains that the trial court erred by refusing to depart from the guidelines to bring Oller's sentence into line with the co-defendants'.

The district court's refusal to depart downward is a matter of discretion, and is not reviewable on appeal. United States v. Dickey, No. 89-50340, slip. op. 647, 651 (9th Cir. Jan. 23, 1991). Although we have upheld a district court's decision to depart downward in order to avoid disparity in sentencing among co-defendants in unusual circumstances, see United States v. Ray, 920 F.2d 562 (9th Cir. 1990), we have never found that departure was required in such cases. See United States v. Carpenter, 914 F.2d 1131 (9th Cir. 1990). Thus, the district court did not err in declining to depart from the applicable guideline range.

Third, appellant maintains he received ineffective assistance of counsel. Oller contends his attorney should have made efforts to have him sentenced during the period when the guidelines had been declared unconstitutional in this circuit, and that his counsel should have known that the changes in the sentencing laws could affect Oller adversely.

In order to establish ineffective assistance of counsel, Oller must show (1) that his counsel's representation fell below an objective standard of reasonableness, and (2) that he was prejudiced by his counsel's performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

Defense counsel's performance in this case was not objectively unreasonable. It is unclear from the record why Oller's sentencing was delayed for as long as it was. Part of the delay was apparently attributable to defense counsel's attempt to exclude certain evidence which Oller maintained was obtained improperly.

It is also not certain whether Oller actually would have received a lighter sentence if he had pled guilty during the window period in which the guidelines were not in effect. In any case, we conclude that defense counsel's attempt to pursue other avenues of defense before urging his client to enter a guilty plea, made in the shadow of a pending Supreme Court decision regarding the validity of the guidelines, was not unreasonable under Strickland.

Finally, appellant contends he did not receive a speedy trial because more than a year elapsed between his indictment and his sentencing. By pleading guilty, Oller effectively waived this argument.

A defendant's guilty plea waives all nonjurisdictional defect claims. See United States v. Broncheau, 597 F.2d 1260, 1262 fn. 1 (9th Cir. 1979). The right to a speedy trial has repeatedly been held to be nonjurisdictional both before and after the Speedy Trial Act was passed. United States v. Yunis, 723 F.2d 795 (1st Cir. 1984). Thus, Oller waived his speedy trial claim. See Lebowitz v. United States, 877 F.2d 207, 209 (2d Cir. 1989).

AFFIRMED.