Unpublished Disposition, 888 F.2d 1394 (9th Cir. 1989)

MEMORANDUM^** 

Defendant-Appellant, Oscar Misael Velazquez, appeals the district court's imposition of a sentence of ten years with no eligibility for parole, followed by a special parole term of four years. We affirm.

Velazquez was sentenced following his plea of guilty on one count of distribution of heroin, a Class B felony. The statute required a sentence for this violation of between five and forty years in prison with no eligibility for parole, followed by a special parole term of four years to life. 21 U.S.C. § 841(a) (1) and 841(b) (1) (B) (i). Under the statute, the judge may also impose a fine.

Sentencing is within the discretion of the judge and will generally not be reversed as long as the sentence falls within the bounds set by statute. United States v. Chiago, 699 F.2d 1012 (9th Cir.), cert. denied, 468 U.S. 854 (1983). The mandatory minimum sentence provision of this statute was upheld recently in this court. U.S. v. Kidder, 869 F.2d 1328, 1333 (9th Cir. 1989). The mandatory minimum sentence does not violate due process of law. Id. at 1334. In United States v. Barker, 771 F.2d 1362, 1365 (9th Cir. 1985), we held that a sentencing judge must make "an individualized assessment of a particular defendant's culpability" before imposing a sentence. In Kidder, we explained that this requirement does not make the statutory minimum unconstitutional: "Barker merely requires that, in choosing a sentence within the statutory limits, a trial judge must make an individualized assessment of the defendant's culpability." 869 F.2d at 1334-35.

The only question Velazquez can raise on appeal is whether the trial judge in this case made an individualized assessment of the defendant. The judge stated:

I have reviewed all the documents and listened to the people who have come up here from Medford to speak on behalf of the defendant and some to request that no incarceration be provided here. There is, of course, a minimum mandatory. And further, I believe there is a necessity for a substantial sentence here. I can fully understand that it was a great temptation to you to sell drugs to enhance and raise your standard of living. But this is a case where you cannot even say this is the only way I can support my family under the circumstances.

You are a person who has held jobs with which you were able to provide for your family and been able to acquire fairly extensive real property, several automobiles. It was done strictly for money, for greed. And to do that, you are willing to sell to people of Medford and Jackson County marijuana, cocaine and heroin for whatever harm that obviously does do to people.

The sentence that I am going to pass here is a substantial sentence. It is not under the guidelines and hence it will result in approximately half the number of years that will actually be served.

I take no particular joy in doing it. The question that comes to my mind as you stand there is you are very sincere and you are very regretful of what happened. I can only say I'm another one who is very sorry for what you did.

The record demonstrates that the judge considered testimony on behalf of the defendant and the defendant's expression of regret, as well as other circumstances. The sentence was within the statutory limits, neither at the minimum nor the maximum. The record demonstrates that the sentence was individualized.

We therefore AFFIRM.