United States v. Carl Ernest Whittenburg

59 F.3d 177 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Carl Ernest WHITTENBURG, Defendant-Appellant. No. 94-10206. United States Court of Appeals, Ninth Circuit. Submitted June 12, 1995. * Decided June 28, 1995. Before: SNEED, ALARCON, and TROTT, Circuit Judges. 1 MEMORANDUM ** 2 Carl Earnest Whittenburg appeals from the order resentencing him to life imprisonment for operating a continuing criminal enterprise under the United States Sentencing Guidelines ("guidelines") following remand by this court. Whittenburg contends that a second remand for resentencing is compelled because the district court violated the Ex Post Facto Clause of the United States Constitution by utilizing guidelines which became effective after his offense was completed. Whittenburg also alleges that the district court's upward departure was based upon erroneous factual conclusions and evidence obtained after his original sentencing on August 27,…