Unpublished Disposition, 904 F.2d 42 (9th Cir. 1990)

No. 89-10244.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and CANBY, Circuit Judges, and EARL B. GILLIAM,^**  District Judge.

MEMORANDUM^*** 

Melvin Braxton Todd appeals his sentence under the Sentencing Guidelines after a jury convicted him of armed bank robbery in violation of 18 U.S.C. §§ 2113(a), (d). We affirm his sentence.

Todd contests the constitutionality of the Sentencing Guidelines on three separate grounds. First, Todd asserts that "mechanical" application of the Guidelines coupled with its preponderance of the evidence standard together violate due process. However, in United States v. Brady, 895 F.2d 538 (9th Cir. 1990), this court held that the Sentencing Guidelines do not violate due process by limiting the sentencing judge's discretion to individualize a defendant's sentence. Id. at 539. In United States v. Wilson, No. 89-50236, slip op. 3423, 3427-3433 (9th Cir. April 6, 1990), this court held that the preponderance of the evidence standard required by the Sentencing Guidelines complies with the due process clause of the Fifth Amendment. Together, these two cases foreclose Todd's argument.

Second, Todd argues that the Guidelines offend due process because they unduly restrict the availability of probation. Todd argues that because 18 U.S.C. § 3561 forbids probation only for a limited class of defendants, probation may not be precluded for other classes of defendants. Todd also claims that the Guidelines effectively prohibit probation except in the most unusual of cases and therefore this conflict between the statutes results in a due process error. The Guidelines by their terms, however, authorize probation if the minimum term of imprisonment in the range specified by its sentencing table is zero months, or, under certain circumstances, if the minimum term of imprisonment is at least one but not more than six months. See Sentencing Guidelines Sec. 5B1.1. Moreover, there is nothing in 18 U.S.C. § 3561(a) (1) which guarantees a term of probation to any defendant. Therefore, even assuming that a conflict between a section of the Guidelines and section 3561 would state a due process claim, there is no conflict.

Lastly, Todd asserts that " [t]he Sentencing Reform Act and Sentencing Guidelines operate from the basic premise that past sentencing practices were disparate and therefore unfair." Consequentially, Todd argues, basing criminal history scores on the prior "unfair" sentences violates due process. See Sentencing Guidelines section 4A1.1 (criminal history category based on length of prior confinement). The premise upon which Todd bases this argument is faulty. The promulgation of the Sentencing Guidelines was not intended to replace an "unfair" system, but simply "to enhance the ability of the criminal justice system to reduce crime through an effective, fair sentencing system." Sentencing Guidelines Introduction A.3 at 1.2 (October 1987 ed.). Moreover, Todd's argument would require that every federal criminal sentence issued before the Guidelines took effect violated due process.

For these reasons, the conviction is AFFIRMED.