Unpublished Disposition, 860 F.2d 1090 (9th Cir. 1988)

MEMORANDUM^** 

Wayne Matecki appeals the five-year sentence imposed upon him following his guilty plea to conspiracy to transport stolen property in interstate commerce, in violation of 18 U.S.C. § 371.

Matecki contends: (1) that he was deprived of due process because the sentencing judge (a) considered Matecki's former codefendant's testimony from the mistrial on the same charges, and (b) read and considered an inaccurate affidavit by the former codefendant which was included in Matecki's presentence report; (2) that the government breached the plea agreement by allowing the codefendant's affidavit to be included in Matecki's presentence report; and (3) that the sentencing court violated the new federal sentencing guidelines by considering information regarding Matecki's background, family support, and dedicated mother. We affirm.

Matecki's due process rights were not violated because sentencing courts may properly consider evidence obtained from previous judicial proceedings. See Walker v. Endell, 850 F.2d 470, 477 (9th Cir. 1987). Further, the sentencing judge explicitly stated that the codefendant's affidavit would not be considered in sentencing Matecki. See United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986); Fed. R. Crim. P. 32(c) (3) (D).

The government did not breach the plea agreement by including the codefendant's affidavit in the presentence report because the agreement required only that the government dismiss an indictment against Matecki and make no sentencing recommendation. See Santobello v. New York, 404 U.S. 257, 262 (1971).

Finally, the court's consideration of information regarding Matecki's background, family ties and dedicated mother did not violate the new federal sentencing guidelines because Matecki's crime was committed in July 1981, and the new guidelines are only effective for crimes committed after October 1987. See United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1988).

AFFIRMED.