UNITED STATES of America, Plaintiff-Appellee, v. Paul SANDERS, Defendant-Appellant

67 F.3d 855 95 Cal. Daily Op. Serv. 7820 , 95 Daily Journal D.A.R. 13,443 UNITED STATES of America, Plaintiff-Appellee, v. Paul SANDERS, Defendant-Appellant. No. 94-50265. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 9, 1995. Decided Oct. 5, 1995. Oswald Parada, Deputy Federal Public Defender, Los Angeles, California, for defendant-appellant. Miriam Krinsky and Alicia Villarreal, Assistant United States Attorneys, Los Angeles, California, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before: FLETCHER, WIGGINS, and FERNANDEZ, Circuit Judges. Opinion by Judge WIGGINS; Dissent by Judge FERNANDEZ. WIGGINS, Circuit Judge: OVERVIEW 1 Paul Sanders pled guilty to a 1993 bank robbery and to using a firearm during a crime of violence, in violation of 18 U.S.C. Sec. 2113 (a) and (d); and 18 U.S.C. Sec. 924 (c)(1). He was sentenced to 50 months imprisonment for the bank robbery and 60 months for the use of the firearm. He was also sentenced to a five-year term of supervised release on the former, and a three-year term on the latter. The supervised release terms, like the terms of imprisonment, were…

Opimon by Judge WIGGINS; Dissent by Judge FERNANDEZ.

OVERVIEW

Paul Sanders pled guilty to a 1993 bank robbery and to using a firearm during a crime of violence, in violation of 18 U.S.C. § 2113 (a) and (d); and 18 U.S.C. § 924 (c)(1). He was sentenced to 50 months imprisonment for the bank robbery and 60 months for the use of the firearm. He was also sentenced to a five-year term of supervised release on the former, and a three-year term on the latter. The supervised release terms, like the terms of imprisonment, were imposed to run consecutively.

Sanders admits that under the law of this circuit in 1993, the district court was correct in imposing consecutive terms of supervised release. However, he argues that a 1994 amendment to the Sentencmg Guidelines that proMbits consecutive terms of supervised release should be applied retroactively. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse.

*856 DISCUSSION

I. Ninth Circuit Law Allowed for Consecutive Terms of Supervised Release.

It is undisputed that the district court’s imposition of consecutive terms of supervised release in this case was proper under this court’s decision in United States v. Shorthouse, 7…

dissenting:

There can be no doubt that we will not apply a substantive change to the Guidelines retroactively, unless it is listed among those changes set forth in U.S.S.G. § 1B1.10. See United States v. Aldana-Ortiz, 6 F.3d 601, 602 (9th Cir.1993). We do apply clarifying changes retroactively. See United States v. Donaghe, 50 F.3d 608, 612 (9th Cir.1994). However, the mere fact that the Commission calls a change clarifying does not make it so where it changes our precedent regarding the law. See United States v. Smallwood, 35 F.3d 414 , 418 n. 8 (9th Cir.1994). When a Guideline change affects the substantive law of this circuit, it is a substantive change. See id.; United States v. Johns, 5 F.3d 1267 (9th Cir.1993). So it is here.

The Commission has called its change to U.S.S.G. § 5G1.2 clarifying, but the amendment directly reverses the law of this circuit. See United States v. Shorthouse, 7 F.3d 149 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1838 , 128 L.Ed.2d 466 (1994). The *858 fact that this particular substantive change would benefit rather than harm Sanders is beside the point. See United States v. Mooneyham, 938 F.2d 139, 141 (9th Cir.), cert. denied, 502 U.S.…