United States v. Stephen Donn Argo

925 F.2d 1133 UNITED STATES of America, Plaintiff-Appellant, v. Stephen Donn ARGO, Defendant-Appellee. No. 89-30043. United States Court of Appeals, Ninth Circuit. Submitted Nov. 1, 1989. * Decided Feb. 4, 1991. Andrew Levchuk, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant. Steven T. Wax, Federal Public Defender, Portland, Or., for defendant-appellee. Appeal from the United States District Court for the District of Oregon. Before WRIGHT, TANG and FERNANDEZ, Circuit Judges. ORDER 1 In its appeal from our unpublished Memorandum of January 19, 1990, 894 F.2d 410 , the government argued that the district court erred in refusing to enhance Argo's sentence because of his prior first degree burglary convictions. We affirmed the judgment and the government petitioned for rehearing as did the defendant-appellee. Each party has responded to the other's petition. 2 We deferred ruling on the petitions for rehearing in this sentence enhancement case pending the Supreme Court's decision in Taylor v. United States, --- U.S. ----, 110 S.Ct 2143, 2158 , 109 L.Ed.2d 607 (1990). Appellee Argo concedes Taylor is adverse to him on the issue of sentence enhancement but argues…

dissenting:

Argo asserts that he relied on the district court’s Rule 11 advisement in entering his plea. The district court based its Rule 11 advisement on the premise that sentence enhancement under the Armed Career Criminal Act was impermissible. In entering his plea, Argo should have been able to rely on this advisement. Ninth Circuit precedent at that time required the district court to reject sentence enhancement. Both Argo and the district court reasonably relied on our circuit authority. Indeed, we also initially relied on our precedent to affirm the judgment of the district court.

The government petitioned for rehearing, however, and we deliberately chose to await the Supreme Court’s decision in Taylor v. United States, — U.S. —, 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), before ruling on the petition. Though Argo’s case might have been disposed of before the Taylor Court changed the law of this circuit, we must now reverse the district court’s and our initial ruling in light of Taylor .

Argo objects at this stage that if Taylor controls his case, we ought to allow the withdrawal of his plea. I agree. We ought at least to mandate the district court on remand to consider…

ORDER

In its appeal from our unpublished Memorandum of January 19, 1990, 894 F.2d 410 , the government argued that the district court erred in refusing to enhance Argo’s sentence because of his prior first degree burglary convictions. We affirmed the judgment and the government petitioned for rehearing as did the defendant-appellee. Each party has responded to the other’s petition.

We deferred ruling on the petitions for rehearing in this sentence enhancement case pending the Supreme Court’s decision in Taylor v. United States, — U.S. —, 110 S.Ct 2143, 2158 , 109 L.Ed.2d 607 (1990). Appellee Argo concedes Taylor is adverse to him on the issue of sentence enhancement but argues correctly that we have not yet considered his constitutional arguments. We now consider and reject his constitutional challenges.

At the outset, we conclude that there is nothing unfair about applying Taylor in this case. Argo was well aware at the time of sentencing that the government sought to enhance his sentence and would expect to appeal the district court’s refusal to do so. In light of the circumstances surrounding the original sentence, resentencing under Taylor will not contravene Argo’s plea…