United States v. Richard Salvador Gutierrez

8 F.3d 31, 1993 U.S. App. LEXIS 35397, 1993 WL 366567

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 20, 1993
• Docket: 93-50044
• Status: Unpublished

Opinion

8 F.3d 31

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
Richard Salvador GUTIERREZ, Defendant-Appellant.

No. 93-50044.

United States Court of Appeals, Ninth Circuit.

Sept. 3, 1993.*
Decided Sept. 20, 1993.

Before: BROWNING, SCHROEDER, and HALL, Circuit Judges.

MEMORANDUM**

Richard Gutierrez appeals his sentence, contending that pursuant to United States v. Vea-Gonzales, 986 F.2d 321 (9th Cir.1993), the district court erred in not permitting him to challenge two prior state convictions used to enhance his sentence as a career offender. We held in Vea-Gonzales that "the Constitution requires that defendants be given the opportunity to collaterally attack prior convictions which will be used against them at sentencing." Id. at 327.

Vea-Gonzales requires that we vacate Gutierrez's sentence and remand for resentencing. We reject the government's argument that Vea-Gonzales was wrongly decided; we are bound by our prior decision. See Morgan v. United States, 958 F.2d 950, 953 (9th Cir.1992). We also reject the government's contention that the decision in Vea-Gonzales is not final. The court has denied rehearing and rejected the government's suggestion for rehearing en banc. United States v. Vea-Gonzales, --- F.2d ----, slip op. 7329, 7332 (9th Cir. July 13, 1993).

VACATED AND REMANDED.

* The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3