Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 281 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Guillermo GARCIA-TORRES, Defendant-Appellant.

No. 90-10062.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1990.* Decided Dec. 19, 1990.

Before PREGERSON, FERGUSON and TROTT, Circuit Judges.

MEMORANDUM** 

Defendant-appellant Garcia-Torres was charged with illegal re-entry after deportation and plead guilty on October 23, 1989. On November 1, 1989, the section of the Federal Sentencing Guidelines relevant to his offense, Sec. 2L1.2(b), was amended. The amended Guideline increased the applicable sentence from a range of two to eight months to a range of ten to sixteen months. On January 3, 1990, the district court sentenced Garcia-Torres to ten months in prison followed by twelve months of supervised released based on the amended Guideline. The government concedes that the district court violated the ex post facto clause of the Constitution when it applied the amended Sentencing Guideline because the amendment was made after Garcia-Torres entered his plea.

In Miller v. Florida, 482 U.S. 423 (1987), the Court found retrospective application of a state law that increased sentencing guidelines void when applied to a person whose crime occurred before the law's effective date because the revised guideline "directly and adversely affect [ed]" the sentence he received. Id. at 435-36. As in Miller, Garcia-Torres was "directly and adversely affect [ed]" by the revised Guideline. The district court sentence is reversed and remanded for resentencing under the Federal Sentencing Guidelines as they existed at the time Garcia-Torres entered his plea.

REVERSED and REMANDED.


 *

This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3