Flowers

MEMORANDUM *

Emert Reginald Flowers appeals his sentence of 140 months in prison. Because the parties are familiar with the facts, we do not repeat them here.

The district court found that Flowers’ base offense level under the U.S. Sentencing Guidelines is 34. The court supported this conclusion with two independent modes of analysis. To alter his sentence, therefore, Flowers must succeed on two different Guidelines challenges. As he cannot succeed on his Ex Post Facto Clause argument, we do not reach the challenge to the relevant conduct holding.

In determining that Flowers meets the career offender criteria, the district court properly applied the Guidelines in effect at the time of sentencing rather than the 1989 Guidelines in effect at the time of his prior conviction. A repeat offender statute in effect at the time a crime is committed can permissibly use convictions that predate the statute’s enactment to enhance the sentence. See McDonald v. Massachusetts, 180 U.S. 311, 312-13 , 21 S.Ct. 389 , 45 L.Ed. 542 (1901); United States v. Ahumada-Avalos, 875 F.2d 681, 684 (9th Cir.1989); Wey Him Fong v. United States, 287 F.2d 525, 526 (9th Cir.1961) (citing McDonald). So it…