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900 F2d 263 United States v. Levinson

900 F.2d 263

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 89-50139.

United States Court of Appeals, Ninth Circuit.

Submitted April 9, 1990.*
Decided April 17, 1990.

Before GOODWIN, Chief Judge, and TANG and BOOCHEVER, Circuit Judges.

1

MEMORANDUM**

2

Gary Levinson ("Levinson") appeals the denial of his motion under 28 U.S.C. Sec. 2255 to correct his sentences for three counts of mailing obscene materials in violation of 18 U.S.C. Sec. 1461. We vacate Levinson's sentences and remand for resentencing under the Sentencing Reform Act of 1984.

FACTS AND PROCEEDINGS

3

On January 28, 1988, the grand jury indicted Levinson on three counts of mailing obscene materials in violation of 18 U.S.C. Sec. 1461 based on his activities in late November 1987. Levinson pleaded not guilty, but was convicted by a jury in July 1988.

4

Prior to sentencing, on October 4, 1988, the government and Levinson entered into a cooperation agreement in which Levinson agreed to forgo with respect to his July convictions his rights to direct appeal, motions under Federal Rule of Criminal Procedure 35, and petitions under 28 U.S.C. Sec. 2241 or 28 U.S.C. Sec. 2255. In exchange for Levinson's cooperation in ending litigation, the government agreed not to indict Levinson on charges of (1) failure to appear, (2) bribery of a federal official, and (3) failure to file a currency report based on Levinson' acts or omissions during the period June 15, 1988 to October 4, 1988.

5

On October 12, 1988, the district court sentenced Levinson under the pre-Guidelines sentencing scheme. At the time of Levinson's sentencing, the Ninth Circuit had declared the Guidelines unconstitutional, and the Supreme Court had not yet addressed the Guidelines' constitutionality. On January 18, 1989, the Supreme Court upheld the Guidelines. Mistretta v. United States, 488 U.S. 649 (1989). On January 25, 1989, contrary to the October 4, 1988 agreement, Levinson filed a motion to correct his sentence under 28 U.S.C. Sec. 2255. In this motion, Levinson argued that because the Supreme Court had upheld the Guidelines, he must be resentenced under them.

6

At the March 6, 1989 hearing on Levinson's motion, the government argued that the court should enforce the October 4, 1988 agreement in which Levinson waived his right to file a 28 U.S.C. Sec. 2255 motion to correct sentence. The district court agreed to enforce the October 4, 1988 agreement, and consequently refused to modify Levinson's sentence. On March 16, 1989, Levinson filed a notice of appeal.

7

After Levinson filed his notice of appeal, the government filed a second indictment against Levinson, which included the three charges it had previously agreed to forgo in exchange for Levinson's waiver of rights.

DISCUSSION

8

Levinson contends that because he committed his offenses after November 1, 1987, the district court erred when it refused to resentence him under the Sentencing Guidelines. The government argues that the district court did not err when it denied Levinson's motion because the district court was merely enforcing Levinson's waiver of his right to seek correction of his sentence under 28 U.S.C. Sec. 2255. However, the government suggests that resentencing may now be warranted because after Levinson filed his notice of appeal, the government filed the indictments it had exchanged for Levinson's waiver of rights.

9

We conclude that this case must be remanded for resentencing. Cooperation agreements, like plea agreements, may be analyzed in terms of contract law. United States v. Carrillo, 709 F.2d 35, 36 (9th Cir.1983). By filing the new charges against Levinson, the government has repudiated its cooperation agreement with Levinson. Consequently, the government can no longer enforce its rights under the agreement and prevent Levinson's attempt to obtain resentencing under the Sentencing Guidelines. Therefore, we remand for resentencing because Levinson's offense occurred after November 1, 1987 and thus falls under the Sentencing Guidelines. See United States v. Rewald, 835 F.2d 215, 216 (the Guidelines apply to offenses committed after November 1, 1987); United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1053 (9th Cir.1990) (in the Ninth Circuit, the Guidelines remained a legally enacted sentencing scheme between August 23, 1989 and January 18, 1990--the period that began after the Ninth Circuit declared the Guidelines unconstitutional and ended when the Supreme Court validated the Guidelines).

CONCLUSION

10

We vacate Levinson's sentences and remand for resentencing under the Sentencing Reform Act of 1984.

11

VACATED and REMANDED.

*

The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed.R.App.P. 34(a); 9th Cir. 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 9th Cir.R. 36-3