Unpublished Disposition, 860 F.2d 1090 (9th Cir. 1988)

MEMORANDUM^* 

Appellant appeals his conviction for manufacture of methamphetamine, manufacture of phenyl-2 propanone ("P-2-P") and possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2.

Appellant first argues that the district court erred in admitting prior statements to the DEA concerning his drug activities. Appellant asserts that the statements were made during plea discussions. This argument was not raised before the district court. The record shows, however, that the statements were made pursuant to an agreement with the government to cooperate in a previous investigation. The appellant was not involved in plea negotiations. Fed. R. Crim. P. 11(e) (6) (D) and Fed.R.Evid. 410 are therefore inapplicable. See United States v. Guerrero, 847 F.2d 1363, 1367-68 (9th Cir. 1988); United States v. Doe, 655 F.2d 920, 925 (9th Cir. 1980). The district court properly determined that the evidence was admissible for proof of appellant's intent and knowledge. See Fed.R.Evid. 404(b). The district court did not abuse its discretion when it determined pursuant to Rule 403 that the probative value of the evidence outweighed its prejudicial effect.

Appellant also challenges the specificity and accuracy of the search warrant. The warrant adequately described the premises to be searched, and the evidence to be seized. Appellant's contentions are not supported.

Appellant claims that the guilty plea upon which his enhanced penalty was based was unconstitutional because it was involuntary. The record overwhelmingly establishes the voluntariness of that plea. The trial court questioned defendant about his recollection and specifically quoted portions of defendant's colloquy with the state court judge in connection with his guilty plea in 1985. (CR 97, pp. 8-13). Before pleading guilty in state court in 1985, appellant made affirmative responses to the judge's repeated and specific inquiries as to whether he understood his rights. (CR 97, pp. 10-11). The district court also took testimony from David Williamson, who represented defendant in the state court criminal proceedings. (CR 102). Mr. Williamson stated that he saw no indication that the defendant was physically or mentally impaired when he pled guilty and that if he, Williamson, had had any question as to whether defendant understood what he was doing, he would not have allowed the plea to go forward. (CR 102, pp. 5, 11-12).

Appellant argues that the enhanced penalties for repeat offenders under 21 U.S.C. § 841(b) (1) (B) constitute double jeopardy in violation of the fifth amendment. The Supreme Court has held that enhancement provisions do not constitute double jeopardy; rather they allow a sentencing judge to impose a sentence appropriate to the defendant given the offense and the defendant's history. Gryger v. Burke, 334 U.S. 728, 732 (1948). Appellant's claim is without merit.

Finally, appellant argues that his sentence was disproportionate to the offense. However, appellant failed to raise this claim before the trial court and this court may deny review absent plain error. United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir. 1985). Appellant's sentence does not exceed the statutory limit; therefore, the district court's sentence may be overturned only if it is so disproportionate to the offense that it constitutes cruel and unusual punishment in violation of the eighth amendment. Solem v. Helm, 463 U.S. 277, 290 (1983). In this case, the evidence established that appellant was an expert at manufacturing methamphetamine and had admitted his ongoing involvement with the production of the drug only six months earlier. Given the defendant's history, his sentence of 25 years did not even arguably constitute cruel and unusual punishment. United States v. Kinsey, 843 F.2d 383, 392-93 (9th Cir. 1988). There was no plain error.

AFFIRMED.