Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1991)

MEMORANDUM^** 

Daniel Guillen-Medina appeals his sentence, following conviction at jury trial, for one count of conspiracy to distribute heroin, in violation of 21 U.S.C. § 846, and two counts of possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a) (1).¹  Guillen-Medina contends that the district court infringed upon his constitutional right to trial when it sentenced him to a disproportionately higher sentence than that received by his allegedly more culpable codefendant. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Guillen-Medina's codefendant, Joseph Cergolj, was charged with the same counts but pled guilty to one count of possession of heroin with intent to distribute. The other counts were dismissed. Cergolj received a ten year suspended sentence and was placed on five years probation with the special condition that he was to participate in a drug rehabilitation program. On this same count, Guillen-Medina received a sentence of four years incarceration, to be served concurrently with the sentences imposed on the other counts for which he was convicted, and three years special parole. Guillen-Medina argues that the alleged disproportionality between his sentence and his codefendant's constituted an "infringement of his right to stand trial."

"A sentence within the statutory limits is generally not reviewable unless there are constitutional concerns." United States v. Citro, 842 F.2d 1149, 1153 (9th Cir.), cert. denied, 488 U.S. 866 (1988). "When there is substantial disparity in sentences imposed upon different individuals for engaging in the same criminal activity, the preservation of the appearance of judicial integrity and impartiality requires that the sentencing judge record an explanation." United States v. Capriola, 537 F.2d 319, 321 (9th Cir. 1976). Remand, however, is only required where "the record is devoid of reasons to support the disparity." Citro, 842 F.2d at 1153; see also United States v. Hall, 778 F.2d 1427, 1428-29 (9th Cir. 1985) (limiting application of Capriola to "situations in which individuals are penalized for exercising their right to stand trial").

Here, the record clearly supports a harsher penalty for Guillen-Medina than for his codefendant. The evidence at trial supports the conclusion that Guillen-Medina, and not Cergolj, was the source of the heroin which was offered for sale. Not only did Guillen-Medina fail to appear for his original court dates in this matter, but he had been arrested and found guilty of selling heroin in another city by the time he was tried in the instant offense. Additionally, he continued to protest his innocence after conviction. The district court was aware of all of these facts at the time that it imposed sentence.

The facts in the record adequately support the severity of the sentence imposed on Guillen-Medina. Therefore, the disparity between the sentence received by Guillen-Medina and that received by his codefendant does not implicate Guillen-Medina's constitutional right to stand trial. See Citro, 842 F.2d at 1154.

AFFIRMED.