Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 915 F.2d 1581 (9th Cir. 1990)

No. 89-10542.

United States Court of Appeals, Ninth Circuit.

Before GOODWIN, Chief Judge, and JAMES R. BROWNING and RYMER, Circuit Judges

MEMORANDUM** 

The government appeals the district court's reduction of Craig Edward Brooks' sentence under Fed. R. Crim. P. 35 on the grounds that an eleven-month delay deprived the district court of jurisdiction and that the district court erred in holding the five-year mandatory minimum sentence for possession with intent to distribute more than 500 grams of cocaine unconstitutional as applied to Brooks. We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate the sentence and remand.

* The determination whether the district court retained jurisdiction to consider a Rule 35(b) sentence reduction motion despite its eleven-month delay is unnecessary because the court lacks authority to reduce a legal sentence below the statutory minimum. United States v. Sharp, 883 F.2d 829 (9th Cir. 1989) (per curiam). If the sentence is illegal, however, the district court retains jurisdiction to correct it under Rule 35(a) at any time. Fed. R. Crim. P. 35.1 

II

A district court's determination that the minimum mandatory penalties prescribed under 21 U.S.C. § 841(b) constitute cruel and unusual punishment is reviewed de novo. United States v. Savinovich, 845 F.2d 834, 839 (9th Cir.), cert. denied, 488 U.S. 943, 109 S. Ct. 369, 102 L. Ed. 2d 358 (1988). A criminal sentence may be overturned on eighth amendment grounds only if it is "grossly disproportionate to the offense committed." United States v. Busher, 817 F.2d 1409, 1415 (9th Cir. 1987) (emphasis in original). In Solem v. Helm, 463 U.S. 277, 290-91, 103 S. Ct. 3001, 3009-10, 77 L. Ed. 2d 637, 649-50 (1983), the Court held that objective criteria should guide an eighth amendment proportionality analysis, including:

(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

Id. at 292, 103 S. Ct. at 3011, 77 L. Ed. 2d at 650.

Congress considers possession with intent to distribute a kilogram of cocaine such a grave offense that mandatory minimum penalties are a necessary deterrent. Savinovich, 845 F.2d at 840. When reviewing sentences under the eighth amendment, we must give "substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes." Solem, 463 U.S. at 290, 103 S. Ct. at 3009, 77 L. Ed. 2d at 649. Brooks committed a grave offense--possession with intent to distribute a kilogram of cocaine--to which he voluntarily pled guilty.

The harshness of the penalty is also viewed objectively. See United States v. Kidder, 869 F.2d 1328, 1333-34 n. 6 (9th Cir. 1989) (noting that while the circumstances of the defendant's crime are relevant to an eighth amendment proportionality test, factors such as a defendant's personal history are not relevant). Judge Vukasin based his conclusion that Brooks' punishment was too harsh primarily on his belief in Brooks' rehabilitation, Brooks' non-criminal background, and personal losses suffered by Brooks' wife and child while Brooks remained in jail. See ER at 92-93, 110-22. However moving these considerations may be, they are not wholly objective, nor do they outweigh Congress' determination of the gravity of the offense.

A comparison of Brooks' sentence with punishments imposed for other crimes satisfies the second and third Solem criteria. See Hutto v. Davis, 454 U.S. 370, 102 S. Ct. 703, 70 L. Ed. 2d 556 (1982) (per curiam) (reversing the court of appeals' invalidation of a forty-year sentence for the distribution of nine ounces of marijuana); United States v. Klein, 860 F.2d 1489, 1497 (9th Cir. 1988) (upholding a mandatory five-year sentence for possession with intent to distribute cocaine despite fact that appellant had "the lowest possible role" in the conspiracy).

Thus, Brooks' sentence of five years for possession with intent to distribute cocaine is not so disproportionate to his crime as to contravene the eighth amendment's prohibition against cruel and unusual punishment.

We VACATE Brooks' sentence and REMAND for sentencing.

 *

The panel unanimously finds this case suitable for decision 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

Appellee's offense was committed prior to November 1, 1987; therefore, the old Rule 35 is applicable in this case. See Fed. R. Crim. P. 35 & Editorial Notes (West 1990); see also United States v. Simpson, 885 F.2d 36 (3d Cir. 1989), cert. denied, 110 S. Ct. 2565, 109 L. Ed. 2d 747 (1990) (applying the unamended Rule 35 to offenses committed prior to November 1, 1987)