Unpublished Disposition, 923 F.2d 863 (9th Cir. 1991)

MEMORANDUM^** 

Vichai Phongchaivararith, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to correct his sentence. Phongchaivararith contends that the district court erred by (1) imposing consecutive sentences, and (2) improperly considering his nationality in imposing sentence. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990), and affirm.

Phongchaivararith's contention that the district court failed to exercise its discretion by imposing consecutive sentences is meritless. "Sentencing is left to the sound discretion of the trial judge and his decision is reviewed only for an abuse of discretion. The sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review." United States v. Yarbrough, 852 F.2d 1522, 1545 (9th Cir.) (citations omitted), cert. denied, 488 U.S. 866 (1988).

Here, Phongchaivararith pleaded guilty to conspiracy to import heroin, in violation of 21 U.S.C. §§ 963 and 952(a) (count one), conspiracy to distribute and to possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a) (1) and 846 (count two), importation of heroin, in violation of 21 U.S.C. § 952(a) (count three), and possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a) (1) (count four). The district court sentenced Phongchaivararith to the maximum 15-year prison term on each of the four counts. The sentences on counts one and two ran consecutively, and the sentences on counts three and four ran concurrently to each other and concurrently with the sentences on counts one and two. Phongchaivararith thus received a total sentence of 30 years imprisonment. This sentence is within the statutory limit and the record indicates that the district court properly exercised its considerable discretion in sentencing Phongchaivararith. See Yarbrough, 852 F.2d at 1545.

Nor did the district court err in imposing consecutive sentences on counts one and two. "The act of importation [of heroin] stands independent of the planned eventual distribution in this country, and hence should be punished separately." United States v. Mora, 876 F.2d 76, 78 (9th Cir. 1989). Here, the conspiracy to import heroin by mailing it to the United States involved different people and different acts than the conspiracy to distribute the heroin and to possess it with intent to distribute. Accordingly, these offenses can be punished separately. See id.

Finally, Phongchaivararith's contention that the district court improperly considered his nationality in imposing the 30-year sentence also fails. There is no evidence in the record that Phongchaivararith's race or national origin influenced the trial judge in imposing sentence. Cf. United States v. Borrero-Isaza, 887 F.2d 1349, 1355-56 (9th Cir. 1989) (determination of whether defendant's nationality improperly influenced the sentencing judge must be made by reviewing the record; judge may consider the fact that drugs originated from a source country).

AFFIRMED.