United States v. Joel Seminole

Joel Seminole appeals the sentence imposed for his conviction under 18 U.S.C. § 922 (g)(1) (felon in possession of a firearm). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). We remand for further proceedings.

FACTS

Seminole pleaded guilty to one count of violating 18 U.S.C. § 922 (g)(1). The date of the offense was December 22, 1987. At the sentencing hearing, the district court heard Seminole’s objections to the sentencing report. Seminole also objected to any imposition of a sentence under the Sentencing Guidelines which had been ruled unconstitutional in Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988) (hereinafter Gubiensio I), vacated sub nom. United States v. Chavez-Sanchez, — U.S. -, 109 S.Ct. 859 , 102 L.Ed.2d 984 (1989). But see Gubiensio-Ortiz v. Kanahele, 871 F.2d 104 (9th Cir.1989) (per curiam) (hereinafter Gubiensio II) (overruling Gubiensio I).

Applying pre-Guideline rules for sentencing, the district court sentenced Seminole to five years of imprisonment. The court also ordered him to pay a special assessment of $50.00 and restitution of $351.00. Finally, the district court fined him $5,000. The court also entered an alternate…