Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)

MEMORANDUM^** 

William Horner Lawrence appeals his conviction and sentence following a jury trial for conspiracy to import cocaine, in violation of 21 U.S.C. §§ 952, 960 and 963, and conspiracy to possess cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a) (1) and 846.¹  Lawrence argues that the district court erred by admitting into evidence Lawrence's alleged out of court statements to a witness. Lawrence also contends that his sentence of ten years in prison should be vacated because it is unfair relative to those of his co-defendants. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Admissibility of Evidence

Lawrence contends the district court erred by allowing a witness to testify about statements Lawrence allegedly made concerning his drug smuggling activities. He argues that the alleged statement was not in furtherance of the conspiracy and therefore, was not within the co-conspirator exception to the hearsay rule. See Fed.R.Evid. 801(d) (2) (E).

We review a district court's evidentiary rulings for an abuse of discretion. United States v. Castro, 887 F.2d 988, 998 (9th Cir. 1989). "Statements by party-opponents are not hearsay and are admissible provided the statement is offered against the party and is the party's own statement." Castro, 887 F.2d at 999-1000; Fed.R.Evid. 801(d) (2) (A).

Here, Lawrence told Harold "Swede" Larsen about his cocaine smuggling activities on a particular night. At trial, over Lawrence's objections, Larsen testified about the content of this conversation. The statement was Lawrence's own statement and connected Lawrence and a co-defendant to cocaine importing activities. Therefore, the statement was not hearsay, and the district court properly ruled that the testimony was admissible as a party admission. See Castro, 887 F.2d at 1000.

Unfair Sentencing

Lawrence argues that his sentence of ten years in prison was unfair because many of his co-defendants received lesser sentences. We review a district court's sentencing decision for an abuse of discretion. United States v. Meyers, 847 F.2d 1408, 1416 (9th Cir. 1988). "It has long been the rule that the matter of sentencing is within the discretion of the sentencing judge and generally is not reversible as long as the sentence falls within the bounds set by statute." United States v. Hall, 778 F.2d 1427, 1428 (9th Cir. 1985). Nevertheless, " [w]here infringement of a defendant's constitutional rights is implicated, appellate courts have ... review [ed] even a sentence within statutory limits." Id. at 1429.

Here, the district court sentenced Lawrence to ten years in prison on count one, conspiracy to import cocaine, pursuant to 21 U.S.C. § 960. On count two, conspiracy to possess cocaine with intent to distribute, the district court imposed a ten-year suspended sentence to run consecutive to count one.

Lawrence does not allege that imposition of the sentence infringes on the exercise of his constitutional rights. Rather, he contends that "general principles of fairness require that defendants similarly situated be treated similarly." Appellant's Brief at 14. Nevertheless, since Lawrence's sentence is within the statutory limit, the district court did not abuse its discretion. See Hall, 778 F.2d at 1428-29 (persons convicted of the same crime need not receive similar sentences).

AFFIRMED.