Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

MEMORANDUM^* 

Gordon Henry Rice appeals his sentence of 80 months in prison, restitution in the amount of $2,251, and a three-year term of supervised release after pleading guilty to bank theft. He contends that the government violated the plea bargain by bringing to the sentencing judge's attention the fact that Rice was armed when he entered the bank, and Rice raises other arguments intended to show that his sentence is illegal. We find no error and affirm.

The plea bargain was in writing, and on its face the document stipulates that the defendant committed bank robbery in violation of 18 U.S.C. § 2113(a) and that section 2B3.1 of the United States Sentencing Guidelines is the appropriate sentencing guideline to be applied.

Rice's attorney succeeded in getting for his client the substantially reduced charge of bank larceny in the superseding information which replaced the original indictment for bank robbery, a crime of violence. With Rice's prior conviction of armed bank robbery--in addition to prior convictions for other robberies--another such conviction would have produced a guideline sentence in the range 168 to 210 months as a career criminal. Because of his attorney's success in obtaining a reduced charge of bank theft, Rice was sentenced to 80 months, which is near the middle of the guideline range of 70 to 87 for theft from a bank.

Rice also argues that we should disregard McMillan v. Pennsylvania, 477 U.S. 79 (1986), and hold that due process requires the prosecution to prove disputed facts at sentencing hearings beyond a reasonable doubt. Last year, our circuit considered similar arguments and held in two cases that preponderance of the evidence is the proper standard of proof required by the guidelines. United States v. Rafferty, 911 F.2d 227, 231 (9th Cir. 1990); United States v. Wilson, 900 F.2d 1350, 1354 (9th Cir. 1990). Because Rice stipulated that he had committed bank robbery and the district court found under the preponderance of the evidence standard that Rice was armed, R.T. at 27, this is not a case that requires a reexamination of circuit law on the proof required to sustain a guideline sentence.

Rice made other claims in his brief, but the record reveals no reason to pursue them further.

AFFIRMED.