Unpublished Disposition, 917 F.2d 1307 (9th Cir. 1990)

No. 89-50657.

United States Court of Appeals, Ninth Circuit.

Before REINHARDT, LEAVY, Circuit Judges, and KING^* , Senior District Court Judge.

MEMORANDUM^** 

Defendant Josue Coronel-Leon pled guilty to knowingly and intentionally importing sixty-eight grams of heroin into the United States in violation of 21 U.S.C. §§ 952 and 960, and 18 U.S.C. § 2. The district court sentenced him to thirty-three months imprisonment to be followed by three years of supervised release. From that sentence he now appeals. We affirm.

DISCUSSION

18 U.S.C. § 3742(a) provides for appellate review of criminal sentences imposed by the district courts in a few limited situations. In United States v. Morales, 898 F.2d 99 (9th Cir. 1990), we held that the district court's discretionary decision not to depart from the Sentencing Guidelines is not reviewable. By contrast, were a district court to decide not to depart from the Guidelines under the mistaken impression that no discretion existed--rather than as an exercise of its discretion--that decision could be challenged as an incorrect application of the sentencing guidelines. See id. at 102 n. 2. Coronel-Leon contends that the district court did indeed mistakenly hold that it lacked the discretion to depart from the guidelines. However, our review of the record convinces us that the district court's decision not to depart from the guidelines was a sound exercise of discretion.

During Coronel-Leon's sentencing hearing, the district court began by noting that the range of permissible sentences for the appellant was thirty-three months to forty-one months.¹  Pursuant to the plea agreement and because of Coronel-Leon's cooperation, the government recommended a sentence at the low end of this range: thirty-three months. The Probation Department made the same recommendation. Defense counsel urged the court to depart downward from the guidelines and impose a sentence of twenty-four months in light of Coronel-Leon's assertion that he did not intend the imported heroin for distribution, and in light of his status as an alien. Counsel argued that these circumstances justified a departure from the guidelines because the guidelines did not anticipate them. Coronel's defense counsel concluded her argument by noting that if the court were not inclined to depart from the guidelines, then she agreed with the government and the Probation Department that thirty-three months would be appropriate.

After hearing the recommendations of both defense counsel and the government, the court stated: "The Court concurs with the presentations of all counsel, and remands the Defendant to the jurisdiction of the Bureau of Prisons for a term of thirty-three months...." Coronel-Leon has pointed to nothing in the record that would indicate that the court meant anything but what it said: namely, that the court was choosing a sentence, thereby choosing not to exercise its discretion to depart from the guidelines. As in Morales, we do not review such a decision.

Coronel-Leon nonetheless argues that Morales is inapposite because at the conclusion of the sentencing hearing in Coronel-Leon's case, the district court informed him that he had a right of appeal. But in so informing Coronel-Leon, the district court was merely alerting him to the procedural requirements with which he would have to comply if he had grounds on which to appeal. The district court did not (and could not) create jurisdiction in this court to review an unreviewable decision.

Finally, Coronel-Leon contends that his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. His claim is that the sentence is disproportionate to his crime, arguing that Congress cannot punish the importation of heroin more severely than the possession of heroin. Quite apart from the novelty of this application of the Eighth Amendment proportionality requirement, it is clear to us that Congress could reasonably conclude that those who facillitate the flow of illegal narcotics into this country pose a greater threat to society than those who possess those same illegal substances once they have made their way across our borders.

Accordingly, the sentence is AFFIRMED.