United States of America, Plaintiff-appellee, v. Robert Earl Mcallister, Defendant-appellant, 21 F.3d 1117 (9th Cir. 1994)

MEMORANDUM^** 

Petitioner Robert Earl McAllister appeals the sentence imposed upon him by the District Court for his conviction for armed robbery of a bank and for knowingly using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 2113(a) (d) and 18 U.S.C. § 924(c) (1), respectively. At the sentencing hearing, the District Judge denied McAllister's request for a downward departure based upon his asserted youthful lack of guidance. The District Court determined that amendment Sec. 5H1.12 of the Sentencing Guidelines, which expressly rejects this ground as a basis for departure, could properly be applied retroactively. In addition, the District Court denied as unnecessary McAllister's request for psychiatric evaluation to determine whether a departure on this ground was warranted based on the court's finding that the amendment precluded consideration on this basis.

We find that the District Court erred when it determined that application of Sec. 5H1.12 did not violate the Ex Post Facto Clause. In United States v. Johns, 5 F.3d 1267 (9th Cir. 1993), we recently confronted the identical issue raised here, and found that the District Court erred in applying Sec. 5H1.12 retroactively. As the government agrees, our ruling in Johns requires us to remand the present case to allow the District Court to decide whether a downward departure based on lack of youthful guidance should be granted and whether to appoint a psychiatrist in connection with McAllister's request for such a departure.

Sentence VACATED and REMANDED for resentencing.