United States v. Fredrick Garcia-Cruz

We originally decided this appeal on the briefs. Subsequently we granted the petition for rehearing. We now withdraw the memorandum disposition filed October 6, 1993 and substitute this opinion.

In this appeal, 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 that 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 . We reverse and remand for resentencing.

We review de novo the district court’s application of 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), cert. denied, — U.S. -, 114 S.Ct. 397 , 126 L.Ed.2d 344 (1993). We recently held, however, that following remand for resentencing that “absent an ex post…