MEMORANDUM**

Craig appeals his conviction and sentence for armed bank robbery. He argues that (1) the district court erred by failing to give the instruction on eyewitness identification he requested; (2) the district court erred by admitting evidence of pre-trial and in-court identifications of him; (3) he was deprived of effective assistance of counsel; (4) the sentencing guidelines violate due process; (5) the sentencing guidelines were improperly applied to him because he committed his crime before December 19, 1987; (6) the sentencing guidelines are invalid because the GAO study of their potential impact was a sham; (7) the sentencing guidelines are invalid because the Sentencing Commission failed to follow its statutory mandate; and (8) he was improperly sentenced as a career criminal.

The district court did not err by giving the Ninth Circuit's model instruction on eyewitness identification, Ninth Circuit Model Jury Instruction 4.13, Manual of Model Jury Instructions for the Ninth Circuit (1985), rather than defendant's requested instruction on eyewitness identification. We have held that a general instruction on eyewitness identification is sufficient. People of the Territory of Guam v. Dela Rosa, 644 F2d 1257, 1261 (9th Cir 1980).

The admission of in-court identification testimony is reviewed for abuse of discretion. United States v. Gregory, 891 F2d 732, 734 (9th Cir 1989). When a defendant alleges that in-court identifications were tainted by improper out-of-court identification procedures, the court must consider whether the out-of-court identification procedures were impermissibly suggestive. United States v. Givens, 767 F2d 574, 581 (9th Cir), cert denied, 474 US 953 (1985). Even if the procedures were impermissibly suggestive, the court may allow the testimony if it finds that the identifications were nonetheless reliable. Id.

The district court did not abuse its discretion in admitting the identification testimony. It was within the court's discretion to find that the out-of-court identification procedures were not impermissibly suggestive: The defendant does not allege that the photospreads were skewed in any way or that the witnesses were coached by the police as to which photo to select. It was also within the district court's discretion to find that the identifications were reliable even if the identification procedures may have been tainted. The witnesses testified that they had clear views of the defendant and were certain of their identifications, and were extensively cross-examined regarding their identifications. RT, 2/14/89, 78-145.

Under Strickland v. Washington, 466 US 668, 690-91 (1984), a defendant complaining of ineffective assistance of counsel must show that (1) his counsel's representation fell below objective standards of reasonableness, and (2) absent errors committed by his counsel, it is reasonably likely that the outcome would have been different. Defendant has shown neither. None of the attorney actions which he cites fall outside of the range of reasonable professional assistance, and he has not shown any likelihood that these actions affected the outcome.

The sentencing guidelines do not violate the due process clause. United States v. Brady, 895 F2d 538 (9th Cir 1990).

The sentencing guidelines took effect on November 1, 1987. United States v. Rewald, 835 F2d 215, 216 (9th Cir 1987). Craig's criminal conduct occurred on November 5, 1987. The guidelines were properly applied to him.

F. Challenge to Guidelines Based on GAO report

Defendant's allegation that the GAO review of the sentencing guidelines was inadequate, even if true, would not entitle him to relief from this court. The GAO report was for the benefit of Congress, and only Congress can judge its adequacy. Defendant raises a political question which this court cannot decide. See United States v. White, 869 F2d 822, 829 (5th Cir), cert denied, 109 SCt 3172 (1989) and 110 SCt 560 (1989) (citing Baker v. Carr, 369 US 186, 214-15, 217 (1962)).

G. Challenge to Guidelines Based on Failure to Follow

Defendant alleges that the Sentencing Commission failed to follow its statutory mandate in formulating many of the guideline provisions. We have previously rejected two of his arguments: (1) that the Commission improperly restricted the availability of probation, United States v. Belgard, 894 F2d 1092, 1099-1101 (9th Cir 1990); and (2) that the guideline procedure for calculating a defendant's criminal history score improperly perpetuates disparities in sentencing, United States v. Litteral, Nos. 88-1453 & 89-10039, slip op at 7981, 7991-92 (9th Cir July 30, 1990). Other courts have considered his remaining challenges to the guidelines and found them to be without merit. We agree. White, 869 F2d at 826-29 (rejecting challenges to the policy statement regarding reduction in sentence for cooperating with the government and the Commission's consideration of the prison population); United States v. Mendez, 691 FSupp 656, 662-64 (S D NY 1988) (rejecting the argument that the Commission was required to formulate a separate type-of-sentence guideline and rejecting challenges to the supervised release and fine provisions).

H. Application of Guidelines Career Criminal Provision

Defendant's due process challenge to the career criminal sentencing enhancement provision of the sentencing guidelines fails because of Brady, 895 F2d at 538. We find no merit in his eighth amendment and equal protection challenges to this provision.

Defendant argues that he was improperly sentenced as a career criminal because his 1975 conviction was constitutionally invalid. His argument is without merit. Defendant may attack his prior conviction because he is faced with possible sentencing enhancement. United States v Clawson, 831 F2d 909, 914 (9th Cir 1987), cert denied, 109 SCt 303 (1988). But he must bring the factual basis for his claim before the district court. Here, defendant claims that his 1975 guilty plea was invalid because he was coerced by intolerable jail conditions. He sought to document his claim of coercion by presenting pleadings from a civil suit, yet none of these pleadings alleged that the jail conditions had anything to do with his guilty plea. SER 149-155. He had never challenged his conviction on this ground before; nor did he put his sentencing transcript before the district court. The district court properly determined that defendant had not shown that his 1975 conviction was constitutionally invalid.

AFFIRMED.