Unpublished Disposition, 862 F.2d 875 (9th Cir. 1988)

MEMORANDUM^* 

FACTS AND PROCEEDINGS

The appellant Tieng Tipkorn appeals his sentence, following a plea of guilty, to the importation of approximately 2400 grams of heroin into the United States in violation of 21 U.S.C. §§ 952(a) (1982 & Supp. IV 1986) and 960(a) (1) (1982). We affirm.

Tipkorn, a native of Thailand, was arrested at the Los Angeles International Airport after customs inspectors discovered plastic bags containing the heroin concealed in the walls of a suitcase Tipkorn was carrying. Tipkorn told the customs inspectors that an unidentified man had given him the suitcase in Thailand, along with an airline ticket to the United States and some cash. The man promised Tipkorn $10,000 upon Tipkorn's return to Thailand for delivering the suitcase to the United States.

By prearrangement, the empty suitcase had been placed in Tipkorn's unlocked car at a parking garage of the Bangkok Palace Hotel. Tipkorn placed his clothes inside the suitcase and flew to Los Angeles. He told Drug Enforcement Agency agents that he did not know what was hidden inside the suitcase.

A grand jury indicted Tipkorn on two counts. Count 1 was for importation of heroin into the United States in violation of 21 U.S.C. §§ 952(a) and 960(a) (1).¹  Tipkorn pleaded guilty to Count 1. Count 2 was for possession of heroin with the intent to distribute, in violation of 21 U.S.C. § 841(a) (1) (1982). Count 2 was dismissed on the government's motion. Pursuant to the penalty provisions in 21 U.S.C. § 960(b) (1) (Supp. IV 1986), the district court sentenced Tipkorn to imprisonment for the mandatory minimum of ten years followed by a supervised release for a mandatory minimum of five years.

Tipkorn timely appealed. He argues that the penalty provisions of 21 U.S.C. § 960(b) are unconstitutionally vague and that they constitute cruel and unusual punishment.

DISCUSSION

1. Whether the Penalty Provisions of 21 U.S.C. § 960(b) Are Unconstitutionally Vague

The constitutionality of a statute is a question of law, reviewed de novo. United States v. Miller, 771 F.2d 1219, 1225 (9th Cir. 1985). With respect to whether a statute is vague, the Supreme Court has stated:

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (footnotes omitted).

In relevant part, section 960(b) (1) provides:

In the case of a violation of subsection (a) of this section involving--

(A) 1 kilogram or more of a mixture or substance containing a detectable amount of heroin ... the person committing such violation shall be sentenced to a term of imprisonment of not less than 10 years and not more than life.... Any sentence under this paragraph shall ... impose a term of supervised release of at least 5 years in addition to such term of imprisonment.... Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this paragraph.

Tipkorn claims that section 960(b) did not provide him with notice "that the mere transportation of a suitcase to the United States from his native Thailand, without actual knowledge of its contents, might subject him to the penalties received." Appellant's Brief at 6. This argument has no legal support and is meritless.

Tipkorn pleaded guilty on the basis of "wilful blindness" to the importation charge and was sentenced under section 960(b). A defendant is wilfully blind when he " 'deliberately omits to make further enquiries, because he wishes to remain in ignorance ... wilful blindness is equivalent to knowledge....' " United States v. Jewell, 532 F.2d 697, 700 (9th Cir.) (en banc) (quoting G. Williams, Criminal Law: The General Part, Sec. 57, at 157 (2d ed. 1961)), cert. denied, 426 U.S. 951 (1976). " [T]he requirement of knowledge is satisfied by proof of a conscious purpose to avoid learning the truth." Id. at 701 (citations omitted). See also United States v. Savinovich, 845 F.2d 834, 838 (9th Cir. 1988) ("Actual or positive knowledge is not necessary to support a conviction for possession of contraband if a defendant is aware of the high probability of possession and consciously disregards that possibility in an effort to remain ignorant.").

Tipkorn contends that section 960(b) failed to provide him with reasonable notice of its penalty in the context of a "wilful blindness" plea. But because Tipkorn deliberately closed his eyes to what should have been obvious to him regarding the delivery of an empty suitcase for such a large sum of money, he is deemed to have had knowledge of the suitcase's contents under the theory of "wilful blindness." Therefore, he cannot claim he had no notice of the offense or of the penalties he might face for importing this large of an amount of heroin into the United States. In effect, Tipkorn attempts to claim innocence for purposes of his sentence despite having pleaded guilty to the importation of heroin.

Further, section 960(b) (1) is not vague. It clearly and unambiguously states the penalty for the violation Tipkorn committed. The obvious purpose of the mandatory minimum penalties of section 960(b) is to ensure consistent, substantial penalties for narcotic traffickers. See Savinovich, 845 F.2d at 838-40 (explaining Congress's approach to punishing drug offenses under the Anti-Drug Abuse Act of 1986). Moreover, the doctrine of "void for vagueness" is typically invoked regarding the conduct a statute prohibits, rather than the penalties it imposes. Tipkorn does not challenge as vague 21 U.S.C. §§ 952(a) or 960(a) (1), the statutes which made his conduct unlawful.

We conclude that 21 U.S.C. § 960(b) is not unconstitutionally vague.

2. Whether the Mandatory Minimum Penalty Provisions of 21 U.S.C. § 960(b) Constitute Cruel and Unusual Punishment

Tipkorn argues that the sentence imposed on him under the penalty provisions of 21 U.S.C. § 960(b) constitutes cruel and unusual punishment because the sentence is grossly disproportionate to the severity of the offense, "given that [Tipkorn] was unaware not only of the drugs in his possession, but also their weight." Appellant's Brief at 10. Again, Tipkorn cannot claim he lacked knowledge. He pleaded guilty because he deliberately closed his eyes to the contents of the suitcase, despite the suspicious circumstances under which he transported it.

We recently held that sentences imposed under 21 U.S.C. § 841(b), which prescribes minimum mandatory sentences for convictions involving possession with the intent to distribute and attempted distribution of narcotics, do not constitute cruel and unusual punishment. Savinovich, 845 F.2d at 839-40. Both section 841(b) and 960(b) are part of the Anti-Drug Abuse Act of 1986, which amended the Comprehensive Drug Abuse Prevention and Control Act of 1970. Like section 960(b), section 841(b) devises penalties based upon the amount of narcotics involved in the offense.

Because of the similarity between these two penalty provisions, we adopt Savinovich's analysis of why section 841(b) does not impose cruel and unusual punishment, and apply it to section 960(b).²  Therefore, we conclude that the penalty Tipkorn received does not constitute cruel and unusual punishment. We reiterate that "Congress has determined that the harm to society caused by the distribution of illegal drugs is so grave that the minimum mandatory penalties are a necessary deterrent. We decline to undermine Congress' broad authority to make this determination." Savinovich, 845 F.2d at 840 (footnote omitted).

AFFIRMED.