United States v. Stephen Donn Argo

Ninth Circuit

United States v. Stephen Donn Argo

925 F.2d 1133, 91 Daily Journal DAR 1495, 91 Cal. Daily Op. Serv. 912, 1991 U.S. App. LEXIS 1458, 1991 WL 10265

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 4, 1991

Docket89-30043

StatusPublished

Cited by10 cases

This text of 925 F.2d 1133 (United States v. Stephen Donn Argo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Stephen Donn Argo, 925 F.2d 1133, 91 Daily Journal DAR 1495, 91 Cal. Daily Op. Serv. 912, 1991 U.S. App. LEXIS 1458, 1991 WL 10265 (9th Cir. 1991).

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ORDER

In its appeal from our unpublished Memorandum of January 19, 1990, 894 F.2d 410, the government argued that the district court erred in refusing to enhance Argo’s sentence because of his prior first degree burglary convictions. We affirmed the judgment and the government petitioned for rehearing as did the defendant-appellee. Each party has responded to the other’s petition.

We deferred ruling on the petitions for rehearing in this sentence enhancement case pending the Supreme Court’s decision in Taylor v. United States, — U.S. —, 110 S.Ct 2143, 2158, 109 L.Ed.2d 607 (1990). Appellee Argo concedes Taylor is adverse to him on the issue of sentence enhancement but argues correctly that we have not yet considered his constitutional arguments. We now consider and reject his constitutional challenges.

At the outset, we conclude that there is nothing unfair about applying Taylor in this case. Argo was well aware at the time of sentencing that the government sought to enhance his sentence and would expect to appeal the district court’s refusal to do so. In light of the circumstances surrounding the original sentence, resentencing under Taylor will not contravene Argo’s plea agreement. We reject as unpersuasive his reliance on Rosebud Sioux Tribe v. State of South Dakota, 900 F.2d 1164, 1173 (8th Cir.1990) (retroactive application of judicial ruling would disrupt Indian tribe’s justifiable expectations).

Argo also alleges that enhancement of his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), violates the Equal Protection Clause, and is an unconstitutional delegation of Congressional power to the States. Also, he contends that the enhancement provisions are void for vagueness. We reject all three of [1135]*1135these contentions for the reasons stated in United States v. Sorenson, 914 F.2d 173 (9th Cir.1990).

Our Memorandum decision of January 19, 1990 is withdrawn. The government’s petition for rehearing is GRANTED and appellee’s petition for rehearing is DENIED. We VACATE the previous sentence, REVERSE and REMAND for resen-tencing.

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ORDER

In its appeal from our unpublished Memorandum of January 19, 1990, 894 F.2d 410, the government argued that the district court erred in refusing to enhance Argo’s sentence because of his prior first degree burglary convictions. We affirmed the judgment and the government petitioned for rehearing as did the defendant-appellee. Each party has responded to the other’s petition.

We deferred ruling on the petitions for rehearing in this sentence enhancement case pending the Supreme Court’s decision in Taylor v. United States, — U.S. —, 110 S.Ct 2143, 2158, 109 L.Ed.2d 607 (1990). Appellee Argo concedes Taylor is adverse to him on the issue of sentence enhancement but argues correctly that we have not yet considered his constitutional arguments. We now consider and reject his constitutional challenges.

At the outset, we conclude that there is nothing unfair about applying Taylor in this case. Argo was well aware at the time of sentencing that the government sought to enhance his sentence and would expect to appeal the district court’s refusal to do so. In light of the circumstances surrounding the original sentence, resentencing under Taylor will not contravene Argo’s plea agreement. We reject as unpersuasive his reliance on Rosebud Sioux Tribe v. State of South Dakota, 900 F.2d 1164, 1173 (8th Cir.1990) (retroactive application of judicial ruling would disrupt Indian tribe’s justifiable expectations).

Argo also alleges that enhancement of his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), violates the Equal Protection Clause, and is an unconstitutional delegation of Congressional power to the States. Also, he contends that the enhancement provisions are void for vagueness. We reject all three of [1135]*1135these contentions for the reasons stated in United States v. Sorenson, 914 F.2d 173 (9th Cir.1990).

Our Memorandum decision of January 19, 1990 is withdrawn. The government’s petition for rehearing is GRANTED and appellee’s petition for rehearing is DENIED. We VACATE the previous sentence, REVERSE and REMAND for resen-tencing.

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925 F.2d 1133, 91 Daily Journal DAR 1495, 91 Cal. Daily Op. Serv. 912, 1991 U.S. App. LEXIS 1458, 1991 WL 10265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stephen-donn-argo-ca9-1991.

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