Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1990)

No. 89-10281.

United States Court of Appeals, Ninth Circuit.

Before CHAMBERS and BEEZER, Circuit Judges, and ANDREW J. KLEINFELD, District Judge^* .

MEMORANDUM^** 

Griffin pleaded guilty to unlawful storage of dynamite and blasting caps in violation of 18 U.S.C. Section 842(j), possession of a controlled substance (methamphetamine) with intent to distribute in violation of 21 U.S.C. 841(a) (1), and, as a penalty enhancement within the methamphetamine count, use of a firearm in relation to the possession of a controlled substance with intent to distribute, in violation of 18 U.S.C. Section 924(c) (1). The search of Mr. Griffin's apartment disclosed 54 sticks of dynamite and twelve blasting caps, as well as his loaded 9 mm semi-automatic stolen pistol and his methamphetamine, together with numerous baggies, a grinder, a precision scale, and a gas mask. He was sentenced to 68 months imprisonment, to be followed by 3 years of supervised release.

Griffin claims that this is cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. His theory is that since the guideline sentence imposed on him for the offense absent the firearm enhancement was only eight months, the additional sixty month penalty enhancement is so disproportionate as to be unconstitutional.

Griffin has found no authority for the proposition that Congress cannot decide to incapacitate a gun-carrying offender for a much longer time than one not carrying a gun in relation to the drug offense. Nor do the underlying crimes, possession of dynamite and blasting caps and possession of methamphetamine with intent to distribute, appear to be minor oversights of a law-abiding individual.

The penalty in this case complies with the proportionality criteria articulated in United States v. Savinovich, 845 F.2d 834, 840 (9th Cir.), cert. denied, --- U.S. ----, 109 S. Ct. 369, 102 L. Ed. 2d 358 (1988), and accords the necessary deference to the democratic process by which Congress and the President decided upon the five year penalty as explained in United States v. Gilliard, 847 F.2d 21, 26-27 (1st Cir. 1988), cert. denied, --- U.S. ----, 109 S. Ct. 846 (1989), following Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980) and Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). The lack of a case precisely on point may result from the bold novelty of the appellant's position. Perhaps some case could be imagined where, although constitutional on its face, the statute might be unconstitutional in its application, but this is not the case.

AFFIRMED.