Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1990)

MEMORANDUM^** 

Appellant Mike Frank Alvarez appeals his sentence under the Sentencing Guidelines. He argues that the Guidelines violate his fifth amendment right to due process by limiting the sentencing discretion of district courts and infringing defendants' rights to individualized sentences. In addition appellant asserts that the Guidelines violate the fifth amendment by forcing a defendant to waive his privilege against self-incrimination. Based on recent Ninth Circuit case law, we find that the Guidelines do not violate due process on these grounds.

In United States v. Brady, 895 F.2d 538 (9th Cir. 1990), the court held that "the Guidelines do not infringe a defendant's right to an individualized sentence." Id. at 540. "The Guidelines limit a sentencing judge's discretion, but ' [a] sentence under the guidelines continues to be highly 'individualized' under the historically accepted criteria' including 'the defendant's criminal history, the degree of seriousness of the crime, as well as a more or less refined categorization of criminal offenses.' " Id. (quoting United States v. Seluk, 873 F.2d 15, 17 (1st Cir. 1989) (per curiam)). Thus, we find as did the court in Brady that " [t]he Sentencing Guidelines do not violate substantive or procedural due process ... by limiting the sentencing discretion of the district court." Id. at 544.

Appellant also argues that his due process rights were violated because a defendant is forced to choose between remaining silent and having his base offense level reduced for "acceptance of responsibility" under Section 3E1.1 of the Guidelines. Although a defendant is faced with this choice, the Ninth Circuit has " 'refused to invalidate, as punishment for the exercise of constitutional rights, the practice of imposing stiffer sentences where defendants have not fully accepted responsibility for their actions.' " United States v. Gonzalez, No. 89-50131, slip op. 2485, 2492 (9th Cir. March 7, 1990) (quoting United States v. Belgard, 694 F. Supp. 1488, 1497 (D. Or. 1988)).

The Ninth Circuit agreed that " 'Section 3E1.1 may add to the dilemmas facing criminal defendants, [but] no good reason exists to believe that 3E1.1 was intended to punish anyone for exercising rights.' " Id. at 2491 (quoting United States v. Henry, 883 F.2d 1010, 1011 (11th Cir. 1989)). The court held that while "it may be more difficult for a defendant who has protested his innocence throughout trial to convince the sentencing judge that he accepts responsibility for his crime without appearing to contradict his previous stance.... that difficulty does not suggest any constitutional infirmity in Section 3E1.1." Id. at 2491-92. Thus, we find that the Sentencing Guidelines do not violate Alvarez's right against self-incrimination.

We AFFIRM the sentence imposed by the district court.