Unpublished Disposition, 888 F.2d 130 (9th Cir. 1989)

MEMORANDUM^** 

Defendant-Appellant Dale E. Wells appeals from the district court's order affirming his conviction by a magistrate and finding no error in the magistrate's denial of his motion for a jury trial. The denial of a defendant's motion for jury trial is reviewed de novo as a question of law. United States v. Stansell, 847 F.2d 609, 611 (9th Cir. 1988).

An offense carrying a maximum term of six months or less is presumed to be a "petty" offense to which the Sixth Amendment right to jury trial does not apply. Blanton v. City of North Las Vegas, Nevada, 109 S. Ct. 1289, 1291 (1989). Violation of 18 U.S.C. § 113(d) is such an offense. Wells therefore is entitled to a jury trial only if "additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe they clearly reflect a legislative determination that the offense in question is a 'serious' one." Id. Since Wells did not make such a showing as to the offense under 18 U.S.C. § 113(d) he was not entitled to a jury trial. See United States v. Stewart, 568 F.2d 501, 503 (6th Cir. 1978) (no constitutional right to trial by jury for violation of 18 U.S.C. § 113(d)). We reject defendant's suggestion that sentencing criteria promulgated subsequent to Wells' conviction and sentencing should be considered in determining whether defendant's violation of 18 U.S.C. § 113(d) was a "petty" offense.

In United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), we held a $25.00 special assessment pursuant to 18 U.S.C. § 3013(a) (1) (A) unconstitutional. See Shah v. United States, 878 F.2d 1156, 1163 (9th Cir. 1989) (issue raised sua sponte on appeal).

AFFIRMED except as to the special assessment which is VACATED.