95 Cal. Daily Op. Serv. 7580, 95 Daily Journal D.A.R. 13,004 United States of America v. Douglas Elmo Canon, United States of America v. Robert John Delang

66 F.3d 1073 95 Cal. Daily Op. Serv. 7580 , 95 Daily Journal D.A.R. 13,004 UNITED STATES of America, Plaintiff-Appellee, v. Douglas Elmo CANON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert John DELANG, Defendant-Appellant. Nos. 93-50847, 93-50848. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 4, 1994. Decided Sept. 28, 1995. Sheldon Sherman, San Diego, CA, for defendants-appellants. Larry A. Burns, Assistant United States Attorney, San Diego, CA, for plaintiff-appellee. Appeals from the United States District Court for the Southern District of California. Before: CANBY, LEAVY, and T.G. NELSON, Circuit Judges. Opinion by Judge T.G. NELSON; Dissent by Judge LEAVY. T.G. NELSON, Circuit Judge: 1 Douglas E. Canon and Robert J. Delang appeal their sentences contending that it was a violation of the Ex Post Facto Clause of the Constitution for the district court to consider a sentencing guideline provision adopted after the date of the crime as a guide in an upward departure. We have jurisdiction over this appeal pursuant to 28 U.S.C. Sec. 1291 , and we vacate the sentences and remand for resentencing. FACTS AND PROCEDURAL…