Unpublished Disposition, 931 F.2d 898 (9th Cir. 1989)

No. 89-50610.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and REINHARDT, Circuit Judges, and SAMUEL P. KING^* , Senior District Court Judge.

MEMORANDUM^** 

On August 17, 1989, Darrow Dewey Ohnstad was convicted of aiding and abetting Gregory Clayton Root in the perpetration of a bank robbery which took place on January 24, 1989. Ohnstad was sentenced as a career offender to a prison term of 175 months, followed by three years of supervised release. Ohnstad claims that the government failed to comply with the procedures of 21 U.S.C. § 851 in enhancing his sentence, that the mechanism set forth in the Sentencing Guidelines for establishing his status as a "career offender" violates the Fifth Amendment guarantee of due process, and that the sentence he received is cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.

Recently, this court in United States v. McDougherty, 920 F.2d 569 (9th Cir. 1990), petition for cert. pending, addressed and rejected the precise arguments Ohnstad makes in this appeal. The reasoning in McDougherty deals squarely with the arguments advanced and case law presented by Ohnstad in support of his position. Although McDougherty involved drug possession and distribution rather than robbery, the analysis set forth in the opinion is directly on point and applicable to this case.

During argument on this appeal, Ohnstad for the first time advanced the argument that the district court's statement at the time of sentencing could be interpreted as indicating that the court was of the opinion that downward departure was not authorized. We do not read the record in the same way. The court did in fact depart downward from the sentencing guidelines but not as far as Ohnstad had requested. This discretionary action is not appealable.

AFFIRMED.