United States v. Kevin P. Kane

In this appeal, the government seeks a reversal of defendant Kevin P. Kane’s sentence and a remand for resentencing within the guidelines promulgated by the United States Sentencing Commission under 28 U.S.C. § 994 (a)(1) (Supp.V 1987) (the “guidelines”). Kane pleaded guilty to three counts of residential burglary within the special maritime and territorial jurisdiction of the United States in violation of 18 U.S.C. § 13 (1982) and Haw.Rev.Stat. § 708-810 (1985). His plea agreement recited that the guidelines would apply at sentencing. The guideline range applicable to Kane’s offense was 36 to 42 months of imprisonment followed by five or fewer years of supervised release. Before Kane’s sentencing, however, this court held the guidelines and the Sentencing Reform Act of 1984 unconstitutional. Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988). The district court therefore sentenced Kane to 18 months of imprisonment and five years of probation pursuant to pre-guideline sentencing standards. The government appealed. Thereafter the Supreme Court upheld the constitutionality of the Sentencing Reform Act and the guidelines on January 18, 1989. Mistretta v. United States, — U.S.…