United States v. Eldon v. Coates , 963 F.2d 377 ( 1992 )

963 F.2d 377

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
UNITED STATES OF AMERICA, Appellee,
v.
Eldon V. COATES, Appellant.

No. 91-3687.

United States Court of Appeals,
Eighth Circuit.

Submitted: May 13, 1992.
Filed: June 4, 1992.

Before BEAM, Circuit Judge, HENLEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

PER CURIAM.

1

Eldon V. Coates appeals the ninety-seven-month sentence imposed by the district court1 upon his plea of guilty to kidnapping, in violation of 18 U.S.C. §§ 7, 1152, 1201.

2

We remand to the district court for consideration of Coates's sentence in light of the amended version of the Sentencing Guidelines. The presentence report (PSR) was prepared on August 19, 1991, with an anticipated sentencing date of October 2, 1991. Its calculations were based on the 1990 version of the Guidelines. The sentencing hearing was not held, however, until November 15, 1991, after the effective date of the 1991 amendments to the Guidelines. Absent ex post facto problems, district courts should apply the Guidelines in effect at the time of sentencing.

3

See United States v. Lawrence, 918 F.2d 68, 72 n.1 (8th Cir. 1990), cert. denied, 111 S. Ct. 1399 (1991); United States v. Swanger, 919 F.2d 94, 95 (8th Cir. 1990) (per curiam). It appears Coates would have benefited from the application of the amended version of U.S.S.G. § 2A4.1.

4

Accordingly, we remand for resentencing.

1

The Honorable Lyle E. Strom, Chief Judge, United States District Court for the District of Nebraska