Unpublished Disposition, 927 F.2d 611 (9th Cir. 1991)

MEMORANDUM^**

PROCEDURAL AND FACTUAL BACKGROUND

Appellant Linda Lujan pleaded guilty to a charge of distribution of heroin. The district court imposed a sentence of five years imprisonment followed by a special parole term of three years. The sentencing of Lujan was not governed by the sentencing guidelines. Lujan appeals from the sentence imposed, contending that the district court abused its discretion in imposing the five year term of imprisonment and that the sentence is in violation of the Eighth Amendment's proscription of cruel and unusual punishment. For the reasons stated, we affirm.

DISCUSSION

Appellant Lujan was sixty-one years of age at the time of the sentencing. She previously had one breast removed for cancer and asserted that she was in poor health. Although the medical report submitted to the court did not find any current cancerous condition, it recommended that she be followed for possible cancer.

Lujan "contested" or "vehemently contested" statements in the presentence report concerning her involvement in the heroin distribution scheme. However, Lujan presented no evidence that the statements in the presentence report or matters relied on by the court were in any manner false or derived from improper sources. For example, one of the sources relied on by the presentence report was the testimony of other actors in the criminal endeavor. Clearly this sort of evidence is properly relied on in the presentence report.

Lujan also contends that her medical condition called for a shorter sentence and that failure to impose a shorter sentence was in itself an abuse of discretion. However, the district court specifically addressed the medical question and ordered that the authorities at the confinement facility furnish a report as to her condition and any treatment that may or may not have been recommended and whether or not "service of the sentence that had been imposed in that kind of setting would be life threatening."

This court reviews the sentence of the trial court for abuse of discretion, if it falls within the statutory maximum sentence. U.S. v. Kerr, 876 F.2d 1440, 1445 (9th Cir. 1989). Where a claim is raised of cruel and unusual punishment, the appellate court must determine only whether the sentence imposed is so grossly disproportionate to the crime as to constitute cruel and unusual punishment, Solem v. Helm, 463 U.S. 277 (1983), or whether or not the court refused to exercise any discretion in setting the sentence. U.S. v. Branco, 798 F.2d 1302 (9th Cir. 1986). Lujan's conviction of possession with intent to distribute heroin is a Class B felony for which the maximum term is twenty years imprisonment and/or a one million dollar fine and a minimum of three years special parole term.

Clearly, in this case, the district court did not abuse its discretion in ordering a five year term of imprisonment, nor is the punishment imposed so disproportionate to the crime as to render it a cruel and unusual punishment.

For the reasons stated, the judgment appealed from is AFFIRMED.