Unpublished Disposition, 911 F.2d 739 (9th Cir. 1990)

MEMORANDUM^* 

Louis Clayton Bland appeals his conviction and sentence for possession, with intent to distribute, a controlled substance. We affirm the district court's decision.

FACTS AND PROCEEDINGS

Bland was arrested in the late evening hours of December 13, 1988 when he attempted to deliver a quart of phencyclidine (PCP) to an individual named Willie Myers. Myers, who had been arrested earlier that evening for an offense involving PCP, had agreed to cooperate with the law enforcement officers by arranging another purchase of PCP. During the course of his cooperation, Myers made three tape recorded telephone calls to Bland. On the first call, Myers asked Bland if he could supply a quart of PCP; Bland told Myers that he had to call someone to check; Myers said he would call back. When Myers called back, Bland told him that the price for the PCP would be 24 ($2400) for 32 (ounces) and that that was $75 a shot (ounce); Myers said he wanted the PCP that evening; Bland said he would have to check on its availability and for Myers to call him back in about ten minutes. Myers did so. Bland told Myers he would deliver the PCP to him that evening at a McDonald's restaurant that was being constructed on Losee Road in Las Vegas, Nevada.

When Bland drove up to the McDonald's Restaurant, his car was stopped by a number of local police officers and federal agents. Bland was removed from his car at gunpoint and was handcuffed by DEA agents. On searching Bland's car, Officer Tanner found a quart bottle containing what was later determined to be PCP.

Bland was placed under arrest by DEA agent Steve Horn, who then and there advised Bland of his constitutional rights. Bland was then asked a series of questions as to where he had obtained the PCP found in his car. A large number of officers and agents, alternating in groups of two or three, participated in the interrogation. During the questioning, Bland, who is 60 years old and has a ninth grade education, asked DEA agent Landrum, "what can you do for me?" Landrum responded that his cooperation would be made known to the government prosecutor.

Bland then admitted that he had approximately 5 gallons of PCP hidden on his property and agreed to show the officers where it was hidden. Agent Landrum read a "consent to search" form to Bland and obtained Bland's written consent. Bland was then accompanied by officers to the property where he lived, known as the "pig farm," and pointed out to the officers the various containers he had stashed on the property. According to Officer Tanner, Bland told him that he had found the PCP and that he had been selling one ounce per week for $100.

On December 21, 1988 a federal grand jury returned a two-count indictment against Bland. Count I charged him with distribution and possession, with intent to distribute, of phencyclidine in violation of 21 U.S.C. § 841(a) (1). Count II charged him with possession, with intent to distribute, of a separate quantity of phencyclidine.

Bland filed a motion to suppress evidence, which was denied. A jury found him guilty as charged. The district court sentenced Bland to 10 years imprisonment on count I and to 20 years imprisonment on count II, the two sentences to run concurrently. Bland filed a timely appeal challenging the denial of his motion to suppress, his conviction, and his sentence.

ANALYSIS

Bland challenges his conviction on the ground that evidence obtained from the pig farm should have been suppressed. He argues that his consent to search the "pig farm" and the statements he made to the officers during the search were induced by direct and implied promises of immunity and/or leniency and were therefore involuntarily given.

However, Bland's contentions are not supported by the evidence. While the agents did promise Bland that his cooperation would be made known to the government prosecutor, we have held that " [a]n interrogating agent's promise to inform the government prosecutor about a suspect's cooperation does not render a subsequent statement involuntary, even when it is accompanied by a promise to recommend leniency or by speculation that cooperation will have a positive effect." United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) (citations omitted). The district court did not err in finding that Bland's statements to the officers and his consent to search were voluntarily made.

Bland contends that the evidence presented at trial was insufficient for the jury to have found that he had the requisite intent to possess, or the specific intent to distribute, any of the PCP found on the "pig farm," and that therefore his conviction for count II should be overturned. He testified that he hid the PCP in various locations on the "pig farm" so that its true owner could not come back and find it. However, he argues that there is no evidence which shows that he again came into contact with the PCP until he showed it to the officers at the time of the search.

Bland's argument is without merit. He exercised dominion and control over the PCP when he took it from its original location and hid it on the property where he lived. Cf. United States v. Savinovich, 845 F.2d 834, 837-38 (9th Cir. 1988) (defendant exercised dominion and control over cocaine when she carried it from her house to her car, drove it to another house, and carried it into that house). The evidence further indicates that Bland continued to exercise control over the PCP and that he intended to distribute it. Officer Tanner testified that Bland told him that he had been selling one ounce of the PCP per week for $100 an ounce. Further, the jury could properly infer from the quantity of PCP seized at the "pig farm"--6.955 kilograms of PCP--that Bland intended to distribute it. Id. at 838 (citing Turner v. United States, 396 U.S. 398, 422-24 (1970) (intent to distribute drugs may be inferred from the amount seized)). Moreover, Bland testified that the quart of PCP he had been delivering to Myers when he was arrested had come from the batch of PCP hidden on the "pig farm." The evidence was sufficient to establish that Bland exercised dominion and control over the PCP located at the "pig farm" and that he intended to distribute it.

Bland also appeals from his sentence imposed under 21 U.S.C. § 841(b) (1) (A) and (B). He argues that the minimum mandatory penalties constitute cruel and unusual punishment in violation of the Eight Amendment.

We have repeatedly upheld the constitutionality of the mandatory minimum penalties prescribed in section 841(b) in the face of Eight Amendment challenges. We have determined specifically that " [t]he penalty provisions of 21 U.S.C. § 841(b) (1) (A) meet the proportionality test of Solem and do not constitute cruel and unusual punishment." United States v. Hoyt, 879 F.2d 505, 514 (9th Cir. 1989). See also United States v. Klein, 860 F.2d 1489, 1495-99 (9th Cir. 1988); Savinovich, 845 F.2d at 839-40.

Bland's final argument is that he was denied his rights to equal protection and due process because the United States Sentencing Guidelines ("U.S.S.G." or "guidelines") unduly restrict the ability of the government prosecutor to engage in effective plea negotiations in cases involving drugs. Bland asserts that under the guidelines a defendant must be prosecuted for all amounts of narcotics involved in the case.

However, Bland fails to show how the guidelines prevented him from negotiating an acceptable plea agreement. Nothing in the guidelines requires the government to prosecute the most serious offense in a drug case. The introductory comments to the guidelines state that " [t]he Commission has decided that these initial guidelines will not, in general, make significant changes in the current plea agreement practices." U.S.S.G., Part A, p 4(c). The most relevant guideline, Sec. 6B1.2(a), provides that the court "may accept the agreement if the court determines, for reasons stated on the record, that the remaining charges adequately reflect the seriousness of the actual offense behavior." While the guidelines do provide that in drug cases the defendant's sentence is to be based on the entire quantity of drugs involved in the defendant's "relevant conduct," see U.S.S.G. Sec. 1B1.3, and "relevant conduct" includes the amount of drugs involved in those counts for which the defendant was charged and convicted as well as the amount involved in any dismissed or uncharged counts, see United States v. Restrepo, No. 88-3207, slip op. 4491, 4502 (9th Cir. May 8, 1990), there is nothing in the guidelines that would preclude the defendant and the government from structuring the plea agreement so as "to prevent what happened to Restrepo in [his] case." Id. at 4509 (Noonan, J., concurring).

The district court's decision is AFFIRMED.