Unpublished Disposition, 940 F.2d 669 (9th Cir. 1991)

MEMORANDUM^** 

Ramon Duron appeals his sentence, imposed following a guilty plea, for bank robbery and attempted bank robbery in violation of 18 U.S.C. § 2113(a). Duron contends that (1) the district court erred by denying him a two-level reduction in his base offense level for acceptance of responsibility under the United States Sentencing Guidelines, (2) the district court erred by failing to state on the record its findings on the disputed adjustment and its reasons for choosing a particular point in the applicable Guidelines range, and (3) the Guidelines violate his rights to due process. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review de novo the district court's construction of the Sentencing Guidelines. United States v. Mooneyham, No. 89-50573, slip op. 8323, 8325 (9th Cir. July 3, 1991).

Under the Guidelines in effect before November 1, 1989, U.S.S.G. Sec. 4B1.1 did not permit a career offender to receive a downward adjustment for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1. United States v. Summers, 895 F.2d 615, 617-18 (9th Cir. 1990), cert. denied, 111 S. Ct. 389 (1991). Although section 4B1.1 was amended effective November 1, 1989 to allow the acceptance of responsibility adjustment, the amendment has no retroactive effect. Mooneyham, No. 89-50573, slip op. at 8326.

Duron was sentenced on May 3, 1989. He does not contest the district court's finding that he was a career offender pursuant to U.S.S.G. Sec. 4B1.1. Consequently, the district court correctly denied the downward adjustment. See id., No. 89-50573, slip op. at 8326.¹ 

The district court must state in open court its specific reasons for choosing a sentence within a range that exceeds 24 months. 18 U.S.C. § 3553(c); United States v. Upshaw, 918 F.2d 789, 792 (9th Cir. 1990), cert. denied, 111 S. Ct. 1335 (1991). Here, the applicable range was 210-262 months, and the district court did not state its specific reasons for imposing a sentence of 210 months. Nevertheless, because Duron received the minimum Guidelines sentence, any error in this regard was harmless.

We have previously held that the Guidelines' restrictions on the district court's ability to individualize sentences do not facially violate due process. United States v. Mondello, 927 F.2d 1463, 1467 (9th Cir. 1991); United States v. Brady, 895 F.2d 538, 540-43 (9th Cir. 1990). Duron has failed to demonstrate that application of the Guidelines to his particular circumstances violated his right to due process. See Brady, 895 F.2d at 543-44.

AFFIRMED.