Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and submitted April 9, 1997.
Appeal from the United States District Court for the Central District of California John G. Davies, District Judge, Presiding.
Before B. FLETCHER and PREGERSON, Circuit Judges, and WEXLER, District Judge.
Honorable Leonard D. Wexler, Senior United States District Judge for the Eastern District of New York, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Rene Jaime Marin-Brizuela appeals the district court's refusal to depart downward from the Sentencing Guidelines on the basis of sentencing disparities arising from the different plea-bargaining policies of United States Attorneys in California's Central and Southern Districts. Marin-Brizuela also appeals the district court's denial of his motion for nationwide discovery to support his claim of selective prosecution. We have jurisdiction under 28 U.S.C. § 1291, and we reverse in part and affirm in part.
In United States v. Banuelos-Rodriguez, 1999 WL 184004 (9th Cir. April 6, 1999), this court held that gross sentencing disparities that arise from different plea-bargaining policies of U.S. Attorneys in § 1326 prosecutions may be a valid ground for departure. In this case, the district court did not clarify the basis for its refusal to depart downward from the sentencing range. If the refusal was based on a conclusion that disparate sentencing caused by different plea-bargaining policies is not a permissible ground for departure, then it was error under Banuelos-Rodriguez. We therefore remand this case to the district court for reconsideration in light of United States v. Banuelos -Rodriguez.
The district court did not abuse its discretion when it denied Marin-Brizuela's motion for nationwide discovery. See United States v. Candia-Veleta, 104 F.3d 243, 244-46 (9th Cir.1996).
REVERSED in part and AFFIRMED in part.