Unpublished Disposition, 902 F.2d 42 (9th Cir. 1989)

MEMORANDUM^** 

Sylte appeals his sentence, imposed under the United States Sentencing Guidelines for possession of cocaine, in violation of 21 U.S.C. § 844. Sylte contends that the district court erred by departing upward from the Guidelines. We have jurisdiction under 28 U.S.C. § 1291.

Sylte was originally charged with a conspiracy occurring between March 1987 and December 1987. Sylte pleaded guilty, however, to the superseding information, which charged:

That on or between August 1, 1987 and August 31, 1987 in the Eastern District of Washington, MICHAEL EUGENE SYLTE, did knowingly, willfully and unlawfully possess a quantity of cocaine Schedule II narcotic substance, in violation of Title 21, United States Code, Section 844.

Although this court previously remanded this case for resentencing under the Guidelines, United States v. Sylte, No. 89-30144, Order (9th Cir. June 20, 1989), we find that the Guidelines do not apply. The district court correctly sentenced Sylte under pre-Guidelines law because he was not convicted of the continuing offense of conspiracy, which would have required sentencing under the Guidelines. Cf. United States v. Gray, 876 F.2d 1411, 1418 (9th Cir. 1989) (Guidelines apply to offenses initiated before November 1, 1987, but completed on or after November 1, 1987). Because Sylte was convicted of possession, which was completed before November 1, 1987, he should not have been sentenced under the Guidelines. See Gray, 876 F.2d at 1418; United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1988). We therefore reverse and remand for resentencing under pre-Guidelines law.

The district court also imposed a special assessment fee on Sylte. Special assessments have been declared unconstitutional in our circuit. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). That portion of Sylte's sentence is therefore vacated.

REVERSED and REMANDED in part and VACATED in part.