Unpublished Disposition, 914 F.2d 1497 (9th Cir. 1990)

MEMORANDUM^** 

Larry Stephen Robbins appeals his sentence for possessing methamphetamine with intent to distribute. We have jurisdiction pursuant to 28 U.S.C. § 1291. Mr. Robbins contends that the Sentencing Guidelines used to determine his sentence violate the presentment clauses, U.S. Const. art. I, Sec. 7, cls. 2 and 3. In light of recent Ninth Circuit authority rejecting this claim, we affirm the sentence imposed by the district court.

The facts underlying Mr. Robbins' arrest and conviction are uncontested. On February 24, 1989 police officers, responding to a radio call regarding a burglary alarm, entered Mr. Robbins' home in Pacific Beach, California. Mr. Robbins was not home. Inside the police found what they believed to be a controlled substance.

Mr. Robbins returned to the residence to find the police waiting. After the police informed him of his Miranda rights he consented to a police search of his home. During this search the officers found thirteen baggies of methamphetamine, four tins containing baggies of marijuana, and twenty-three guns.

Mr. Robbins pled guilty to one count of possessing methamphetamine with intent to distribute. The other count set forth in the indictment, being an unlawful user of a controlled substance in possession of a firearm, was dismissed. Prior to his sentencing, Mr. Robbins filed an objection to the presentence report and the sentencing proposal. In this pleading he argued that the Sentencing Guidelines violated the presentment clauses. The district court upheld the constitutionality of the Guidelines and Mr. Robbins was sentenced to 60 months in custody, five years of supervised release and a fine of $12,500. Mr. Robbins now appeals this sentence.

Under the Sentencing Guidelines legislation, the Guidelines as well as any amendments made to them become effective without the President's approval. Pub. L. No. 98-473, Sec. 235(a) (1) (B) (ii) (III) (provides that the Guidelines go into effect after Congress had six months to consider them); 28 U.S.C. § 994(p) (provides that any amendment to the Guidelines will go into effect after Congress has had at least 180 days to examine them). Mr. Robbins contends that this process violates the presentment clauses since the President is not given an opportunity to approve or veto the Guidelines or their amendments while Congress is given a six-month period to review the Sentencing Commission's decisions.

According to appellant, therefore, the presentment clauses are implicated at two points in the development of the Guidelines. First, the President does not approve the Guidelines developed by the Sentencing Commission before they become effective. Second, Congress is given a six-month review period to evaluate the Guidelines before they become effective. Appellant asserts that the President is denied a role in these processes in violation of the presentment clauses.

These arguments have been rejected in two recent Ninth Circuit cases. In United States v. Scampini, No. 89-50378, slip op. 9021 (9th Cir.August 16, 1990) this court, although not directly faced with the issue, rejected the idea that the Sentencing Commission's promulgation of the Guidelines violates the presentment clauses. This decision was based on the Supreme Court's decisions in United States v. Mistretta, 109 S. Ct. 647 (1989) (Congress's delegation of power to the Sentencing Commission to make the rules is validated) and Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919 (1983) (only an exercise of legislative power raises a presentment clause issue). Using these authorities this court concluded that the Sentencing Commission's power to develop the Guidelines was rule-making, not legislating and found no presentment clause violation. Scampini, No. 89-50378, slip op. 9021 at 9025-9026.

Appellant's contention that the six-month review period given to Congress violates the presentment clauses was rejected in both Scampini and United States v. Litteral, No. 88-1453, slip op. 7981 (9th Cir. July 30, 1990). Both cases reasoned that the review period does not give Congress the ability to veto or change the Guidelines. The six-month period simply "allows Congress an opportunity to review the Guidelines or amendments before they become effective and to pass legislation barring their effectiveness if Congress finds the Guidelines or amendments objectionable." Litteral, slip op. 7981 at 7991. Since Congress is not permitted to veto or change the Guidelines under this rule without validly enacted legislation, the President's non-involvement in the six-month period does not raise a presentment clause issue.

Mr. Robbins' constitutional challenge to the Guidelines has been rejected by this Court. Accordingly, the sentence imposed by the district court is AFFIRMED.