Unpublished Disposition, 849 F.2d 1477 (9th Cir. 1985)

MEMORANDUM^** 

Zagar Kovittamakron appeals the denial of his Rule 35 motion to correct his sentence. We affirm.

FACTS AND PROCEEDINGS

On January 28, 1985 Kovittamakron and Rawat Chamlonaphol discussed a heroin transaction over the phone with a police informant. As a result, on January 29, at an apartment complex, Kovittamakron and Chamlonaphol showed the informant and undercover police officer Melvin Turner thirteen pounds of heroin. They gave Turner a 5.5 gram sample and agreed to sell him fifteen pounds of heroin the next day. On January 30, at a motel Kovittamakron delivered 5,424.1 grams of heroin to Turner and two DEA undercover agents. He was then arrested.

Kovittamakron was indicted on five counts. Later, he pleaded guilty to two counts: count 2, which dealt with the distribution of the sample; and count 4, which concerned the delivery of heroin on January 30th. He was sentenced to twelve years imprisonment on count 2 and twenty years imprisonment on count 4. The court suspended execution of the sentence on count 4 and imposed a ten year special parole term to begin at the end of the sentence imposed on count 2.

Kovittamakron filed a motion to correct his sentence under Fed. R. Crim. P. 35. The district court denied the motion. Kovittamakron now timely appeals.

DISCUSSION

Kovittamakron contends that the district court erred in imposing separate sentences for his convictions on two separate counts of distributing heroin because the two offenses were parts of a single criminal undertaking.

When a defendant distributes a sample of drugs and retains the remainder to make an immediate distribution to the same recipients at the same place and at the same time, he or she may be convicted for both distribution and possession with intent to distribute, but only one sentence for these offenses may be imposed. See United States v. Palafox, 764 F.2d 558, 559-60 (9th Cir. 1985) (en banc). We find that Palafox does not apply. First, neither conviction was for possession with intent to distribute. Further, the two distributions occurred at different times, in different places, and with different participants. See United States v. Rodriguez-Ramirez, 777 F.2d 454, 457-58 (9th Cir. 1985).

We also reject Kovittamakron's argument that the Palafox criteria requiring an identity of time, place, and participants are overly strict. Even if Palafox did apply, we have already refused to loosen the Palafox requirements. See id. at 457-58 (declining to extend Palafox to situation where two offenses did not occur in the same place and at the same time).

AFFIRMED.