Unpublished Disposition, 852 F.2d 572 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 572 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.William Harold ELLIS, Defendant-Appellant.

No. 87-1328.

United States Court of Appeals, Ninth Circuit.

Submitted June 27, 1988.* Decided July 8, 1988.

Before BRUNETTI, KOZINSKI and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

William Harold Ellis pleaded guilty to one count of conspiracy to manufacture and distribute methamphetamine, in violation of 21 U.S.C. § 841(a) (1) and 846. He was sentenced to fifteen years in prison. He appeals the sentence on the ground that it was imposed in violation of law. See 18 U.S.C. § 3742(a) (1). Ellis contends the district court abused its discretion (1) by imposing a disparately harsh sentence on him in comparison with the sentences given his two codefendants;1  (2) by imposing the sentence solely because of his past criminal record; and (3) by failing to give any reason for the sentence imposed. We have jurisdiction under 18 U.S.C. § 3742(d) and we affirm.

District courts are accorded virtually unfettered discretion in imposing sentences which are within statutory limits. United States v. Barker, 771 F.2d 1362, 1364 (9th Cir. 1985).2  While there are exceptions to this general proposition, none applies here.

Ellis' culpability was greater than that of his codefendants. He was the leader of the conspiracy and admitted he had involved his codefendants in it. One of the codefendants was his wife. Ellis stated that when she found out rural property they had rented was being used to manufacture methamphetamine, she was upset and the couple separated. Her involvement in the conspiracy was fairly minimal. The involvement of the other codefendant, Moody, is less clear. His fingerprints, along with Ellis', were found on glassware at the methamphetamine lab. However, according to Ellis, Moody only got involved as a friend who helped clean up the lab after methamphetamine production had ceased. Contrary to this version, Moody stated he was the only one who had attempted to manufacture methamphetamine at the property, and the Ellis' were initially unaware of his activities.

Notwithstanding the conflict in the statements of Ellis and Moody, there was substantial evidence which indicated that Ellis' culpability in the conspiracy was greater than that of either of his codefendants. The district court did not abuse its discretion in imposing on Ellis a harsher sentence than it imposed on his wife and Moody. See United States v. Chicago, 699 F.2d 1012, 1014 (9th Cir.), cert. denied, 464 U.S. 854 (1983); United States v. Garrett, 680 F.2d 650, 652 (9th Cir. 1982).

Ellis also argues the district court abused its discretion because "the sentence [imposed on him] seemed to be based solely upon [his] past criminal record." (Appellant's Brief at 2). This contention lacks merit. A defendant's criminal record and failure to achieve rehabilitation during prior prison terms are factors which the district court may consider in sentencing. See United States v. Mills, 597 F.2d 693, 699 (9th Cir. 1979). (Court did not abuse its discretion by taking note of defendant's history of drug abuse, lengthy criminal record and failure to achieve rehabilitation during prior prison terms).

Here, Ellis' Presentence Report informed the court of Ellis' criminal history and his prison record. (Presentence Report at 8-11). At the time Ellis was sentenced for the present offense, his criminal record included several drug related offenses and three adult felony convictions: a 1973 conviction for second degree murder; a 1983 conviction for robbery and burglary; and a 1983 conviction for felony assault and battery. (Presentence Report at 8-11). Ellis had spent considerable time in prison and apparently committed the present offense while on parole. (Presentence Report at 11). Moreover, Ellis admitted to a history of extensive drug involvement and to having a propensity for violence, particularly when under the influence of drugs. (Presentence Report at 14). The district court did not err in considering this information in sentencing Ellis. See Mills, 597 F.2d at 699.3 

Finally, Ellis contends the district court erred by failing to explain why his sentence was imposed on him. This contention also fails. The district court was not required to explain the sentence.

When codefendants' sentences are within statutory limitations and no constitutional right has been infringed, the sentencing judge need not explain the disparity in codefendants' sentences. United States v. Hall, 778 F.2d at 1429. The court is required to explain a disparity in sentencing when it appears that one defendant has received a more severe sentence because he has exercised his right to stand trial while other codefendants, who received lesser sentences, pleaded guilty. Hall, 778 F.2d at 1428; Garrett, 680 F.2d at 652. Here, Ellis did not choose to stand trial. He pleaded guilty.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

One of Ellis' codefendants was his wife. She was given a sentence of twenty years with the first six months in custody and the balance suspended. The other codefendant was given fifteen years, with the first year to be served in a community treatment center and the balance suspended

 2

Ellis' sentence was within the statutory limit. See 21 U.S.C. § 841(b)

 3

In contrast to Ellis' extensive criminal history, codefendant Moody had no prior felony convictions. Moody pleaded guilty in July 1987 in Sacramento Municipal Court to non-support; an auto theft charge was still pending against him when his Presentence Report was prepared. (Moody Presentence Report at 6-7). Codefendant Tracy Ellis had one prior felony conviction for marijuana possession and two other convictions for minor offenses. (Tracy Ellis Presentence Report at 8-11)