911 F.2d 350 (9th Cir. 1990), 89-50378, United States v. Scampini

Docket Nº:89-50378.
Citation:911 F.2d 350
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ronald Desmond SCAMPINI, Defendant-Appellant.
Case Date:August 16, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 350

911 F.2d 350 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronald Desmond SCAMPINI, Defendant-Appellant.

No. 89-50378.

United States Court of Appeals, Ninth Circuit

August 16, 1990

Argued and Submitted May 7, 1990.

As Amended Oct. 2, 1990.

Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

Page 351

Gregory W. Jessner, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, THOMPSON and O'SCANNLAIN, Circuit Judges.

WALLACE, Circuit Judge:

Scampini appeals from the sentence imposed by the district court following his conviction for bank robbery in violation of 18 U.S.C. Sec. 2113(a). He challenges the constitutionality of the Sentencing Guidelines (Guidelines), contending (1) that the Guidelines violate the due process clause of the fifth amendment by restricting a sentencing court's ability to provide individualized sentencing; and (2) that the Guidelines violate the presentment clauses in article I, section 7 of the Constitution. The district court exercised jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291. We affirm.

I

Both of Scampini's arguments require us to address questions of constitutional law and thus our standard of review is de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Scampini's argument that the Guidelines violate the due process clause of the fifth amendment by limiting the district court's ability to impose an individualized sentence is foreclosed by our recent decision in United States v. Brady, 895 F.2d 538 (9th Cir.1990). In Brady, we addressed this precise argument and rejected it, stating:

the Guidelines do not infringe a defendant's right to an individualized sentence, whether or not such a right is constitutionally mandated. The Guidelines limit a sentencing judge's discretion, but "[a] sentence under the guidelines continues to be highly 'individualized' under the historically accepted criteria" including "the defendant's criminal history, the degree of seriousness of the crime, as well as a more or less refined categorization of criminal offenses."

Id. at 540 (citation omitted).

II

Scampini next contends that the Guidelines violate the presentment clauses of the Constitution. U.S. Const. art. I, Sec. 7, cls. 2 and 3. Those clauses provide in part:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law....

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