940 F2d 669 United States v. Fetterman

940 F.2d 669

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Daniel Tyler, FETTERMAN, Defendant-Appellant.

No. 89-50371.

United States Court of Appeals, Ninth Circuit.

Submitted July 23, 1991.*
Decided July 26, 1991.

Before PREGERSON, D.W. NELSON and REINHARDT, Circuit Judges.

1

MEMORANDUM**

2

Daniel Fetterman appeals his sentence, imposed following a guilty plea to one count of bank robbery in violation of 18 U.S.C. Sec. 2113(a). He contends that the district court erred by sentencing him as a career offender under the United States Sentencing Guidelines, by denying him a downward adjustment for acceptance of responsibility even if the career offender classification was proper, and by failing to depart downward from the career offender range. Alternatively, he argues that the Sentencing Guidelines are unconstitutional as applied to him. We have jurisdiction over three of his claims under 28 U.S.C. Sec. 1291 and affirm the sentence. We lack jurisdiction to review the district court's decision not to depart below the Guidelines and dismiss that part of the appeal.

3

We review de novo the district court's construction of the Sentencing Guidelines. United States v. Mooneyham, No. 89-50573, slip op. 8323, 8325 (9th Cir. July 3, 1991).

4

A defendant is a career offender if (1) [he] was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

5

U.S.S.G. Sec. 4B1.1. Under the Guidelines in effect before November 1, 1989, section 4B1.1 did not permit a career offender to receive a downward adjustment for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1. United States v. Summers, 895 F.2d 615, 617-18 (9th Cir.1990), cert. denied, 111 S.Ct. 389 (1991). Although section 4B1.1 was amended effective November 1, 1989 to allow the acceptance of responsibility adjustment, the amendment has no retroactive effect. Mooneyham, No. 89-50573, slip op. at 8326.

6

Fetterman was sentenced on June 28, 1989. He concedes that he meets the definition of a career offender under U.S.S.G. Sec. 4B1.1.1 Consequently, the district court correctly sentenced him as a career offender and denied the downward adjustment.2 See Mooneyham, No. 89-50573, slip op. at 8326.

7

A district court's discretionary decision not to depart downward is not reviewable on appeal. United States v. Zweber, 913 F.2d 705, 707 (9th Cir.1990); United States v. Morales, 898 F.2d 99, 102-103 (9th Cir.1990). Here, although the district judge commented that the Guidelines placed restrictions on her discretion in sentencing, she clearly stated that she had no reason to depart from the Guidelines. Accordingly, she exercised her discretion in deciding not to depart, and we lack jurisdiction to review her decision.3 See Zweber, 913 F.2d at 707-08.

8

We have previously held that the Guidelines' restrictions on the district court's ability to individualize sentences do not facially violate due process. United States v. Mondello, 927 F.2d 1463, 1467 (9th Cir.1991); United States v. Brady, 895 F.2d 538, 540-43 (9th Cir.1990). Fetterman appears to suggest that the Guidelines violated due process as applied to him because sentencing under the career offender provisions resulted in a sentence longer than necessary to meet the general purposes of sentencing described in 18 U.S.C. Sec. 3553(a). We note, however, that this determination lay with the district court, which had discretion to depart downward from the career offender range had it seen reason to do so. See United States v. Lawrence, 916 F.2d 553, 555 (9th Cir.1990). As discussed above, the district court found no reason to sentence Fetterman below the applicable range.

9

AFFIRMED IN PART, DISMISSED IN PART.

*

The panel unanimously finds this case suitable for decision 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

1

Although Fetterman suggests that one of his three prior robbery offenses should not have been considered "violent," he concedes that he had committed two other violent offenses which meet the requirements of section 4B1.1(3)

2

Fetterman argues that although he meets the career offender definition, the district court should have declined to classify him as such because he is not the sort of offender for which the career offender ranges were meant. Under the Guidelines, the district court has no discretion to refuse to apply the career offender range to defendants who meet its definition. See United States v. Selfa, 918 F.2d 749, 752 (9th Cir.), cert. denied, 111 S.Ct. 521 (1990)

3

The district judge was not required to state "explicitly" that she was electing not to exercise her discretion to depart. See United States v. Garcia-Garcia, 927 F.2d 489 (9th Cir.1991) (per curiam)