Appeal from the United States District Court for the Southern District of California. D.C. No. CR-90-0890-01-MLH. Marilyn L. Huff, District Judge, Presiding
Before: Fletcher, Poole, and O'scannlain, Circuit Judges.
Fredrick Garcia-Cruz appeals his 41-month sentence, imposed following remand from this court for resentencing. Garcia-Cruz was originally sentenced to 200 months, following a jury trial, for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Garcia-Cruz contends the district court erred by applying the Guidelines in effect on the date of his original sentencing, rather than those in effect at the time of the offense. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de nova the district court's application at the Guidelines. United States v. Kohl, 972 F.2d 294, 297 (9th Cir. 1992).
Generally, a district court applies the Guidelines in effect on the date the defendant is sentenced. United States v. Warren, 980 F.2d 1300, 1304 (9th Cir. 1992). We recently held, however, that following remand for resentencing that "absent an ex past facto problem, the district court must apply the version of the Sentencing Guidelines in effect on the date of resentencing." United States v. Fagan, 996 F.2d 1009, 1018 (9th Cir. 1993). Where application of the amended version results in a harsher sentence, the district court should apply an earlier version not posing an ex post facto problem. See id.; see also United States v. Gross, 979 F.2d 1048, 1052-53 (5th Cir. 1992) (instructing district court to apply on remand Guidelines in effect on date of original sentencing because application of amended version would result in increase of defendant's sentence); United States v. Kopp, 951 F.2d 521, 534 (3rd Cir. 1991) (similar).
The relevant facts are undisputed. The offense at conviction occurred in December 1988. On October 21, 1991, the district court imposed a 200-month sentence under the Armed Career Criminal Act (ACCA), finding that being a felon in possession of a firearm was a "crime of violence" for purposes of applying the ACCA. Garcia-Cruz successfully appealed his sentence to this court. See United States v. Garcia-Cruz, 978 F.2d 537, 543 (9th Cir. 1992) (remanding for resentencing because being a felon in possession of a firearm not a crime of violence for purposes of ACCA), cert. denied, 113 S. Ct. 2453 (1993).
Resentencing occurred on May 14, 1993. The parties disputed which version of U.S.S.G. § 2K2.1 was applicable.*fn1 Garcia-Cruz argued that the 1988 version, in effect at the time of the offense, was applicable. The government, however, argued that Garcia-Cruz should be sentenced under either the 1992 version of section 2K2.1, in effect on the date of resentencing, or as a career offender under the 1988 version of U.S.S.G. § 4B1.1, in effect at the time of the offense. The district court rejected the arguments of both parties. Relying on United States v. O'Neal, 937 F.2d 1369 (9th Cir. 1990), the court concluded that the instant offense was a crime of violence far career offender purposes under the 1988 Guidelines. The court therefore applied the 1990 version of 2K2.1, in effect on the date of the original sentencing, which resulted in the most favorable sentence for Garcia-Cruz.
On appeal, Garcia-Cruz contends the district court erred by concluding that the instant offense could be treated as a crime of violence under the 1988 version of section 4B1.1 because O'Neal has been overruled by subsequent case law. Alternatively, he argues that subsequent amendments to section 4B1.1 stating that the instant offense is not a crime of violence should apply retroactively because they merely clarify the 1988 version. Such arguments are foreclosed by our decision in United States v. Henderson, 993 F.2d 187 (9th Cir. 1993).
In Henderson, we noted that "in this circuit, the crime of being a felon in possession of a firearm was a crime of violence prior to November 1, 1989." Id. at 189. Because Garcia-Cruz committed the instant offense in December 1988, it qualifies as a crime of violence for career offender purposes under the 1988 Guidelines.
Garcia-Cruz also seeks application of the base offense level dictated by the 1988 version of 2K2.1 and the post-1988 Guidelines defining a crime of violence. We have recently considered and rejected a similar argument. See Warren, 980 F.2d at 1306 (holding that sentences must be determined under one set of Guidelines and rejecting a piecemeal approach). Garcia-Cruz urges this panel to overrule Warren. We reject his suggestion because a panel not sitting en banc lacks the authority to overrule Ninth Circuit precedent. See United States v. Lockett, 919 F.2d 585, 591 (9th Cir. 1990).
Accordingly, we conclude that the instant offense was a crime of violence for career offender purposes under the 1988 Guidelines. Therefore, the district court properly resentenced Garcia-Cruz under the more favorable 1990 Guidelines in effect on the date of the original sentencing.