Richard Carlton Risher, Petitioner-appellant, v. United States of America, Respondent-appellee, 993 F.2d 884 (9th Cir. 1993)

Before CANBY and NORRIS, Circuit Judges, and TANNER, District Judge.^** 

MEMORANDUM^*** 

Risher appeals from the district court's denial of his § 2255 motion. He makes two claims: 1) his sentence violates the due process and the ex post facto clauses because he entered his plea at a time when the Guidelines were not in effect and was later sentenced as a career offender under the Guidelines, and 2) his sentence violates due process and Fed. R. Crim. P. 11(c) because the trial court failed to inform him when he pled guilty that he might be sentenced as a career offender under the Guidelines.¹  We reject these claims.

Criminal defendants who entered guilty pleas during the time the Guidelines were not in effect in this circuit have no due process right not to be sentenced under the Guidelines. U.S. v. Ramos, 923 F.2d 1346, 1358 (9th Cir. 1991); U.S. v. Boise, 916 F.2d 497, 505 (9th Cir. 1990), cert. denied, 111 S. Ct. 2057 (1991); U.S. v. Kincaid, 898 F.2d 110, 111 (9th Cir. 1990).²  Because Risher's challenge to his sentencing under the Guidelines fails, his claim that his sentencing as a career offender fails as well, for the career offender provisions are part of the Guidelines. His claim that the government violated its agreement not to seek enhancement also fails. Not only did the government not seek enhancement, it moved for a downward departure based on Risher's assistance to the government.

Nor does the district court's failure to inform Risher when he entered his plea that he might be sentenced as a career offender invalidate the sentence. A district court need not identify the precise Guideline range at the time the plea is entered, U.S. v. Selfa, 918 F.2d 749, 752 (9th Cir. 1990). Moreover, a district court's failure to mention the Guidelines at all is harmless if the court identifies the statutory minimum and maximum. Ramos, 923 F.2d at 1357-1358. Because Risher does not allege that he was not informed of the statutory maximum and minimum, and because he knew when he pled guilty that he could receive a sentence as long as the one he received, his claim fails. Ramos, 923 F.2d at 1357-58.

Risher's due process and ex post facto claims are DENIED. The judgment of the district court denying his habeas petition is REVERSED and REMANDED in a published disposition filed simultaneously with this Memorandum disposition.