United States v. Joel A. Eatinger

Eatinger challenges the district court’s denial of his motion requesting a reconsideration of his sentence pursuant to Fed.R. Crim.P. 35(b). We reverse and remand.

I

On October 28, 1988, Eatinger pleaded guilty to one count of distributing heroin on or about April 20, 1988. The Sentencing Guidelines (“the Guidelines”) apply to offenses committed after November 1, 1987. However, on August 23, 1988, the Ninth Circuit declared the Guidelines unconstitutional. See Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988), vacated, United States v. Chavez-Sanchez, — U.S. -, 109 S.Ct. 859 , 102 L.Ed.2d 984 (1989). As a result, the district court did not apply the Guidelines when it sentenced Eatinger on January 10, 1989. On January 18, 1989, the Supreme Court found the Guidelines constitutional. See Mistretta v. United States, 488 U.S. 361 , 109 S.Ct. 647 , 102 L.Ed.2d 714 (1989).

The district court sentenced Eatinger to five years incarceration. Based on an offense level of 12 and a criminal history category of III, the Guidelines range for incarceration would be 15 to 21 months.

In May 1989 Eatinger moved for reconsideration of his sentence under Fed.R. Crim.P. 35(b) and requested…