Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1988)

MEMORANDUM^** 

Bonillas and Montiel challenge the constitutionality of 21 U.S.C. § 841(b) (1) (B) (ii) (II) on the ground that there is no rational basis for imposing minimum mandatory sentences based solely on the quantity of narcotics involved and that the statute therefore violates the due process and equal protection clauses. In United States v. Savinovich, No. 87-3049, slip op. (9th Cir. April 26, 1988), this court decided a closely related question: whether the statute was unconstitutional because it based sentences upon the quantity rather than the purity of the drugs involved.

The court noted that the statute's purpose was to deter the sale of narcotics by targeting specific links in the chain of drug distribution, and said " [t]he classification ... is thus directly related to Congress' desire to prevent both wholesale and retail distribution of illegal drugs. A classification scheme, therefore, of mandatory punishments for possession of more than 500 grams of cocaine is not unreasonable or irrational." Id. at 4863 (citations omitted). The court's rationale forecloses Bonillas and Montiel's claim.

Savinovich also rejected the contention advanced by Bonillas and Montiel in this case that the statute's scheme of mandatory minimum sentences constitutes cruel and unusual punishment. See id. at 4865.

"A defendant has the responsibility to demonstrate the need for the disclosure [of the identity of an informant]." United States v. Alexander, 761 F.2d 1294, 1303 (9th Cir. 1985) (citing United States v. Tham, 665 F.2d 855, 859 (9th Cir. 1983)). To meet this burden, defendants must make a showing that disclosure "is relevant and helpful to the defense ... or is essential to a fair determination of [their] cause." Roviaro v. United States, 353 U.S. 53, 60-61 (1957). It was not shown that the informant had any contact with Bonillas or Montiel; defense counsel admitted the informant's only contact with anyone involved in the transaction occurred when he arranged the meeting between Sisneros and the agent. The informant was nearby when the transaction occurred, but the defendants made no showing that the informant was in a position to observe any involvement by Bonillas and Montiel in the transaction. It was therefore not an abuse of discretion to refuse to compel disclosure of the informant's identity.

Bonillas' sentence was not disproportionate. He was sentenced to an additional 7 years because he was convicted on a second count. Moreover, Bonillas played a larger role in the transaction and had a prior record. Even if the sentence had been disproportionate, this court does not generally review sentences which are within statutory limits. United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986).

AFFIRMED.