Unpublished Disposition, 912 F.2d 470 (9th Cir. 1987)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 912 F.2d 470 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Rodney S. McCOMBS, Defendant-Appellant.

No. 89-30339.

United States Court of Appeals, Ninth Circuit.

Submitted*  Aug. 7, 1990.Decided Aug. 21, 1990.

Before RONEY** , Senior Circuit Judge, FARRIS and FERNANDEZ, Circuit Judges.


MEMORANDUM*** 

Defendant Rodney S. McCombs appeals the denial of his Rule 35 motion for reduction of his eight-year concurrent sentences for two convictions of conspiracy and possession of cocaine. He contended he was entitled to have his sentence reduced, first, because it was unduly harsh and disproportionate to sentences received by others committing the same offenses and possessing similar backgrounds, and second, because the sentencing judge relied on impermissible and erroneous factors in determining his punishment, i.e. failure of defendant to implicate others, and unsupported assumptions regarding defendant's criminal record and financial situation. A careful review reveals that McCombs' arguments are not supported by the record. We affirm.

Since McCombs was sentenced prior to November 1, 1987, this is not a sentencing guideline case. United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987). The district court's denial of a motion to reduce sentence under Rule 35, Fed.R.Crim.P, is reviewed on appeal for abuse of discretion. United States v. Thayer, 857 F.2d 1358, 1359-60 (9th Cir. 1988); United States v. Barker, 771 F.2d 1362, 1364 (9th Cir. 1985). The question is whether the decision was made upon consideration of relevant factors and whether there has been a clear error of judgment. United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.), cert. denied, 479 U.S. 963, 107 S. Ct. 462, 93 L. Ed. 2d 407 (1986).

McCombs contends that Michael McColley, whose offense and history were virtually identical to his, received a substantially lighter sentence from a different district court judge. The district judge here determined, however, in findings that are not clearly erroneous, that McCombs was the most important figure in the drug sale and that he was lying on the stand. Unlike McColley, who had one prior conviction, McCombs had two: first, when he was 19 and received a very lenient sentence, and again when he was 21 when he received a four-year sentence. In any event, this court has consistently held that it is within the discretion of the trial judge, relying upon appropriate information, to impose different sentences upon co-defendants even in the same case. See United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986), citing, United States v. Chiago, 699 F.2d 1012, 1014 (9th Cir.), cert. denied, 464 U.S. 854, 104 S. Ct. 1, 78 L. Ed. 2d 154 (1983).

It appears that the district court carefully weighed all of the information provided and reached a studied decision in making McCombs' sentence greater than McColley's, and greater than the norms which the district court recognized in Alaska and nationally. The district court specifically noted McCombs' two prior shorter sentences, saying: "And evidently it didn't take. So he needs more time." Reflecting on the averages for such offenses in Alaska and in federal courts, the court said: "However, that doesn't take full account of the fact that he's already had four years and it didn't work."

The government's brief properly argues that the record does not factually support the assertions that: the district court improperly refused to consider family hardship; that the sentence was imposed because McCombs would not reveal the names of others in the chain of drug distribution; or that the sentence was the result of improper assumptions as to wealth and criminal history.

The district court exercised appropriate discretion in sentencing McCombs, based on relevant information, and committed no clear error of judgment.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission without oral argument

 **

Honorable Paul H. Roney, Senior Circuit Judge, U.S. Court of Appeals for the Eleventh Circuit, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3