Unpublished Disposition, 867 F.2d 614 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 614 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Michael Bruce DUFFY, a/k/a Michael A. Ross, Jr., Defendant-Appellant.

No. 88-3115.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 9, 1989.* Decided Jan. 27, 1989.

Before WRIGHT, TANG and WIGGINS, Circuit Judges.


MEMORANDUM** 

Appellant Duffy pleaded guilty to Count I of an indictment charging bank fraud in violation of 18 USC Sec. 1344 for an incident that occurred July 1, 1987. He also pleaded guilty to Count V which charged wire fraud in violation of 18 U.S.C. § 1343. He appeals the district court's imposition of maximum consecutive sentences within the statutory range. He argues first that the district court abused its discretion in failing to sentence pursuant to the Sentencing Guidelines Act of 1984. He argues secondly that the district court abused its discretion by not stating on the record the reasons for its sentence. We affirm.

We review a district court's sentencing decision for an abuse of discretion. United States v. Meyers, 847 F.2d 1408, 1416 (9th Cir. 1988), see also United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986). The legality of a sentence is reviewed de novo. United States v. Whitworth, 856 F.2d 1268, 1288 (9th Cir. 1988). A sentence which falls within statutory limits is ordinarily not reviewable unless constitutional concerns exist. United States v. Tucker, 404 U.S. 443, 446-47 (1972); Meyers, 847 F.2d at 1416; Messer, 785 F.2d at 834.

Failure to Sentence Pursuant to the Sentencing Guidelines Act of 1984

The plea agreement executed by Duffy and his counsel state " [i]n regards to the application of guidelines sentencing for the offenses, it is understood they do not apply because the offenses occurred prior to November 1, 1987."

Duffy concedes that this case arose before implementation of the Guidelines. Under United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987), we held the Sentencing Reform Act of 1984 effective on November 1, 1987. The guidelines promulgated thereunder do not apply to conduct that occurred prior to November 1, 1987. Meyers, 847 F.2d at 1415. The district court did not abuse its discretion by not following the guidelines.

Failure to State On the Record Reasons for Sentencing

Duffy next contends that the district court abused its discretion by neglecting to state its reason for imposing maximum consecutive sentences. He contends that the district court is "required to make such a statement in open court and is further required, if the sentence does not require restitution (as this one does not) to state the reason for not ordering restitution. 18 U.S.C. § 3553."

The government argues that appellant's section 3553 argument does not consider that the cited statutes were not effective as to the defendant's punishment.

Section 3553 is a part of the Sentencing Guidelines Act. See Nuno-Huizar, 859 F.2d 85, 87 (9th Cir. 1988); Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245, 1247 (9th Cir. 1988). Again, the crimes for which appellant was convicted occurred before November 1, 1987, the effective date of the Act, and therefore are subject to sentence under the then existing law.

"It is generally accepted that trial courts are accorded virtually unfettered discretion in imposing sentence. While there are exceptions, a sentence is generally not subject to appellant review if it is within statutory limits." Whitworth, 856 F.2d at 1288-1289 (quoting United States v. Barker, 771 F.2d 1362, 1364 (9th Cir. 1985). We find no abuse of discretion for not stating on the record reasons for imposing sentence where, as here, the trial court ordered the preparation of a presentence report and the sentence was imposed within the maximum range.

AFFIRMED.

 *

The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3