Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 921 F.2d 282 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Dennis Ray SMITH, Defendant-Appellant.

No. 89-50704.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 13, 1990.* Decided Dec. 20, 1990.

Before GOODWIN, Chief Judge, and WALLACE and NELSON, Circuit Judges.


MEMORANDUM

Smith pled guilty to conspiracy with intent to distribute 100 grams and more of methamphetamine, a controlled substance, in violation of 21 U.S.C. §§ 841(a) (1) and 846. The probation officer determined that, pursuant to sections 1B1.3 and 2D1.4 of the federal Sentencing Guidelines, the range for imprisonment was 151 to 188 months. The district court accepted the terms of the defendant's plea agreement and therefore imposed a lesser sentence of 120 months, in line with the statutory minimum sentence. Smith now appeals that sentence. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

Smith argues against his 10-year sentence on two grounds: (1) that the mandatory minimum 10-year prison term does not apply to his conviction, and (2) that the district court erred in calculating the sentence under the federal Sentencing Guidelines. Because we find that the statutory minimum sentence does apply to Smith's offense, we do not reach his second argument.

Federal law provides a 10-year minimum term of imprisonment for violations of 21 U.S.C. § 841(a) (1) that involve "100 grams or more of methamphetamine." 21 U.S.C. § 841(b) (1) (A) (viii). Smith, however, argues that he should only be subject to the 5-year minimum term prescribed for violations involving "100 grams or more of a mixture or substance containing a detectable amount of methamphetamine." 21 U.S.C. § 841(b) (1) (B) (viii).

The charges against Smith arose in part out of a sale of methamphetamine to a government agent. Smith argues that because the methamphetamine he sold was not 100 percent pure methamphetamine, he is only subject to the lesser 5-year sentence. However, Smith unambiguously pled guilty to conspiracy to possess with intent to distribute "100 grams and more of methamphetamine." Defense counsel admitted at the sentencing hearing that the "basis for the [guilty] plea" was "the methamphetamine that [Smith] sold, over a hundred grams." The government never charged Smith with any crimes involving "a mixture or substance containing a detectable amount of methamphetamine." 21 U.S.C. § 841(b) (1) (B) (viii). The count in the indictment to which Smith pled guilty clearly mirrors the statute that calls for a 10-year minimum sentence for crimes involving "100 grams or more of methamphetamine," and that sentence therefore applies to his conviction. 21 U.S.C. § 841(b) (1) (A) (viii); see United States v. Kidder, 869 F.2d 1328, 1332-33 (9th Cir. 1989) ("A guilty plea is an admission of each and every element required to establish the offense."). In addition, at Smith's plea hearing the district court notified him that the minimum mandatory penalty would be 10 years in prison, and defense counsel acknowledged that "Mr. Smith is aware that it could, in fact, be ten [years]."

We conclude that the district court was correct in ruling that Smith was subject to the 10-year statutory mandatory prison sentence, and we reject his appeal.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4