Unpublished Disposition, 931 F.2d 898 (9th Cir. 1986)

MEMORANDUM^** 

Larry Joseph Tosta appeals his sentence, imposed following his conviction on a guilty plea, for importing cocaine on November 25, 1986 in violation of 21 U.S.C. §§ 952 and 960. Tosta claims his five-year sentence constitutes cruel and unusual punishment in violation of the eighth amendment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

"A sentence within 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); United States v. Tucker, 404 U.S. 443, 447 (1971) (same). "When there is a 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 required only where "the record is devoid of any reason to support the disparity." Citro, 842 F.2d at 1153.

Here, the presentence report characterized Tosta as a "mid-management person" in a conspiracy to import almost 550 kilograms of 90% pure cocaine in 1986. His conviction exposed him to a statutory maximum penalty of 20 years' imprisonment and a $1,000,000 fine. Two codefendants, Torres and Trevino, whom Tosta recruited to drive the load vehicle, received sentences of fifteen months and twenty-four months respectively. The pilot, Peralta, received a twenty-year sentence. Tosta's probation officer recommended a ten-year sentence in light of the quantity of cocaine at issue. The district court, nonetheless, sentenced Tosta to five years' imprisonment in accordance with his plea agreement.

The presentence report, on which the district court relied, amply supports the disparity between Tosta's and his codefendants' sentences. See Capriola, 537 F.2d at 321. We hold, therefore, that Tosta's eighth amendment rights were not implicated. See Citro, 842 F.2d at 1153.

AFFIRMED.