Unpublished Disposition, 872 F.2d 431 (9th Cir. 1986)

MEMORANDUM^* 

Bop-Nin Chow appeals his sentence of life imprisonment without possibility of parole after pleading guilty to one count of possession with intent to distribute 1.8 kilograms of heroin in violation of 21 U.S.C. § 841(a) (1). He challenges the sentence on Eighth Amendment, due process and equal protection grounds.

FACTS

In October of 1986, Drug Enforcement Administration (DEA) informant Perry set up a meeting between Chow and DEA agents Talton and Jefferson to discuss the importation of heroin from Thailand. The first meetings occurred early that month, but Chow was reluctant to discuss the deal without Perry present. A second meeting occurred on October 15. Perry and co-defendant Ping Sheng Ting (Sheng), whom Chow introduced as his granddaughter, were also present. Chow offered to pay the agents $10,000 each to smuggle heroin from Thailand. At additional meetings in October and November, Sheng showed the agents how to smuggle heroin in hidden pockets sewn into a shirt, and Chow discussed the agents' fees and other practical arrangements. Sheng often interpreted for Chow, who speaks only broken English.

On November 27, 1986, Chow and Sheng met Agent Talton at the airport. Talton handed Chow luggage containing heroin. Chow and Sheng were then arrested. Sheng cooperated with the government in its further investigation of smuggling operations.

Chow and Sheng were charged in a four count superseding indictment charging two counts of conspiracy to import and possess with intent to distribute heroin in violation of 21 U.S.C. § 846, one count of possession with intent to distribute in violation of 21 U.S.C. § 841(a) (1), and one count of importation of heroin in violation of 21 U.S.C. §§ 952(a) and 960(a) (1). The indictment specified the quantity of heroin as 1.8 kilograms.

Sheng pled to the conspiracy charge, which carried no mandatory minimum penalty, and was sentenced to a five year parolable term of imprisonment. The government refused to accept a guilty plea from Chow on the conspiracy charge. Chow pled guilty to the possession charge, and was sentenced to a mandatory life prison sentence, without possibility of parole, and a two-million dollar fine.

This court has jurisdiction under 28 U.S.C. § 1291. The notice of appeal was timely filed.

DISCUSSION

Chow presents an Eighth Amendment argument based on the proportionality principle of Solem v. Helm, 463 U.S. 277 (1983). Under Solem, appellate courts may review a prison sentence to assure that its length is not disproportionate to the crime for which the defendant has been convicted. Id. at 290. This review is to be based on three objective criteria: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Id. at 922; United States v. Kinsey, 843 F.2d 383, 392 (9th Cir.), cert. denied, 109 S. Ct. 99 (1988).

This court recently analyzed a similar claim of disproportionality in United States v. Klein, 860 F.2d 1489, 1495-99 (9th Cir. 1988). In Klein, we noted that the definition of crimes and the setting of appropriate punishments are for Congress to decide. Id. at 1495; see also United States v. Valenzuela, 646 F.2d 352, 354 (9th Cir. 1980). If the statute under which the defendant is sentenced is valid, a particular sentence within statutory limits will not be overturned as cruel and unusual. United States v. Washington, 578 F.2d 256 (9th Cir. 1978).

The Solem analysis begins with the gravity of the offense and the harshness of the penalty. Chow argues that narcotics trafficking is a "non-violent" offense, and that it must therefore be punished less harshly than violent crimes such as rape or murder. This argument is controlled by our opposite conclusion in Klein, supra at 1496-97. Congress has concluded that narcotics offenses are among the most serious of all crimes. This conclusion is entitled to great deference.

The second Solem factor involves sentences imposed on other criminals in the same jurisdiction. In Klein we analyzed other federal statutes and concluded that the mandatory minimum sentences of 21 U.S.C. § 841(b) (1) are not excessive in comparison with other federal crimes. Id. at 1498. While Klein did not consider the maximum penalties under Sec. 841(b) (1), we reach the same result.

At least five other federal statutes permit a sentence of life imprisonment: kidnapping (18 U.S.C. § 1201(a)); murder (18 U.S.C. § 1111); piracy (18 U.S.C. § 1651); rape (including statutory rape) (18 U.S.C. § 2241); and hostage taking (18 U.S.C. § 1203). In addition, 21 U.S.C. § 848 allows for a life sentence in the case of a continuing criminal enterprise involving narcotics; Sec. 848(b) mandates the life sentence where the defendant is the "kingpin" of the enterprise and the substantive violation involves 300 times the quantity of the substance needed to trigger 21 U.S.C. § 841(b) (1) (B) or the enterprise grosses over $10 million. 21 U.S.C. § 960 provides for penalties paralleling those of Sec. 841 for importation of narcotics.

The third Solem factor requires us to compare sentences imposed for the commission of the same crime in other jurisdictions. It is not necessary to find that the federal sentence is within a national average or majority; the concern for Eighth Amendment purposes is that the sentence not be unique. Compare Solem, 463 U.S. at 300 (defendant's sentence unconstitutional where he was punished "more severely than he would have been in any other State") with Rummel v. Estelle, 445 U.S. 263, 279 (1980) (sentence upheld where only two other States provide for penalties as severe).

At least four states permit sentences of forty-five years or more for comparable offenses. See Terrebonne v. Blackburn, 646 F.2d 997 (5th Cir. 1981 en banc) (life imprisonment under Louisiana law for selling heroin); Salazar v. Estelle, 547 F.2d 1226 (5th Cir. 1977) (45-year term under Texas law for distributing heroin); Gaines v. Hess, 662 F.2d 1364 (10th Cir. 1981) (50-year term under Oklahoma law for narcotics distribution by a felon); Bellavia v. Fogg, 613 F.2d 369 (2d Cir. 1979) (15 years to life under New York law for sale of cocaine). The federal sentencing scheme is not uniquely harsh.

In sum, application of the Solem factors in this case does not compel the conclusion that Chow's sentence violates the Eighth Amendment.

II. Constitutional Challenges to Classification of Penalties

by Quantity, Without Regard to Purity

The statutory penalties under Sec. 841(b) (1) are determined by reference to the quantity of the mixture or substance containing the controlled substance, rather than by reference to the actual amount of the controlled substance present. Purity is disregarded. Chow argues that this classification denies him due process and equal protection. This argument is controlled by recent decisions of this court upholding the classification. See Klein, supra at 1500-01; United States v. Savinovich, 845 F.2d 834, 838-39 (9th Cir.) cert. denied, 109 S. Ct. 369 (1988).

III. Constitutional Challenge to Disparity of Sentences

Imposed on Chow and Co-Defendant Sheng

Chow argues that the great disparity between the sentences given him (life without parole) and co-defendant Sheng (five years parolable sentences) is fundamentally unfair.

A sentence which falls within statutory and constitutional limits is reviewable only for abuse of discretion. United States v. Chiago, 699 F.2d 1012, 1014 (9th Cir. 1983). The district court has discretion to impose disparate sentences upon co-defendants, so long as individual circumstances are taken into account. United States v. Vaccaro, 816 F.2d 443, 458 (9th Cir.), cert. denied, 108 S. Ct. 262 (1987); United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986). Chow cites United States v. Minor, 756 F.2d 731, 738 (9th Cir. 1985), vacated on other grounds, 474 U.S. 991 (1985) as authority for modification. In that case, however, we thought it possible that the district court did not know what sentence the co-defendant received. Id. at 737. We nevertheless affirmed, merely recommending that the district court consider exercising its Rule 35 power to reduce the sentence. Id. at 738.

The district court considered the facts that Sheng had no prior criminal record, whereas Chow had two prior convictions; that Sheng cooperated with the government in its investigation of another heroin shipment, whereas Chow refused to cooperate; and that Chow was the director of the operation. The district court's sentencing decision was not an abuse of its discretion.

IV. Failure Adequately to Plead and Prove the Essential

Elements of Sec. 841(b)

The first superseding indictment did not make reference to 21 U.S.C. § 841(b), the penalty portion of the statute. The indictment did expressly charge a violation of Sec. 841(a) (1) (the substantive provision). Such a charge satisfies the requirement of Fed. R. Crim. P. 7(c) (1) that " [t]he indictment ... shall state for each count the official ... citation of the statute ... which the defendant is alleged therein to have violated."

Chow argues that the amount and type of the controlled substance are essential elements of the offense under 21 U.S.C. § 841(b), which must be pled in the indictment. The indictment alleges that Chow possessed 1.8 kilograms of heroin. Because Sec. 841(b) draws the line at 1 kilogram, the applicability of that provision is clear from the indictment.

Chow also argues that the actual amount of heroin possessed by him was not adequately proven. However, the government alleged the amount at the time of the plea, and Chow stated his agreement. It is irrelevant that Chow denied personal knowledge of the amount, once he indicated his agreement with the actual amount seized. Knowledge of the amount of drugs is not an element of a Sec. 841(a) offense. Klein, supra at 1494; United States v. Normandeau, 800 F.2d 953, 956 (9th Cir. 1986).

V. Failure to Advise Appellant that a Life Sentence Would be

Without Possibility of Parole

We have noted in reviewing the record that the trial judge did not inquire whether the accused was aware that he faced a sentence of life without possibility of parole. Because this issue was not raised below, we decline to address it here. See United States v. Larios, 640 F.2d 938, 942 (9th Cir. 1981). Our rejection in this direct appeal of the issues raised concerning the validity of Chow's guilty plea is without prejudice to the filing of a motion in the district court under 28 U.S.C. § 2255 concerning whether the entry of the plea was knowing and intelligent and whether Chow's trial counsel competently represented him. See Torrey v. Estelle, 842 F.2d 234 (9th Cir. 1988).

CONCLUSION

The judgment of the district court is AFFIRMED.