Unpublished Disposition, 922 F.2d 845 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 922 F.2d 845 (9th Cir. 1991)

No. 90-50024.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and POOLE, Circuit Judges, and EZRA,**  District Judge.

MEMORANDUM

LaValle-Decasas (LaValle) appeals from his sentence of 120 months' imprisonment and 60 months' supervised release. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

LaValle pled guilty to one count of conspiracy to possess approximately 46 kilograms of methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1) and 846. In exchange for his plea, the government agreed to recommend a sentence of 10 years, the statutory minimum.

Following entry of his guilty plea, LaValle was interviewed by a probation officer. The probation officer recommended against a two-point reduction for acceptance of responsibility because LaValle minimized his participation in the offense. However, the probation officer recommended reduction of LaValle's base offense level by two points because LaValle's level of involvement in the conspiracy was less than that of co-conspirators Becerra and Fuentes. Therefore, the probation officer determined that LaValle had an offense level of 30 and a criminal history category of I. Under the Sentencing Guidelines, LaValle's guideline range was 97 to 121 months. However, because of the statutorily required 10-year minimum sentence, LaValle's guideline range was calculated at 120 to 121 months. The district court sentenced LaValle to the minimum mandatory term of 10 years and five years' supervised release.

The constitutionality of a sentence is reviewed de novo. United States v. Brownlie, 915 F.2d 527 (9th Cir. 1990); United States v. Hoyt, 879 F.2d 505, 511 (9th Cir.) (Hoyt) (trial court's interpretation of the meaning of 21 U.S.C. § 841(b) (1) (A) is reviewed under a de novo standard), and on other grounds, 888 F.2d 1257 (9th Cir. 1989).

A sentence within the statutory limit is generally not reviewable unless there are constitutional concerns. United States v. Citro, 842 F.2d 1149, 1153 (9th Cir.), cert. denied, 488 U.S. 866 (1988). If a sentence raises constitutional issues, review on appeal is more searching. United States v. Yarbrough, 852 F.2d 1522, 1545 (9th Cir.), cert. denied, 488 U.S. 866 (1988).

LaValle argues three grounds for reversal. First, LaValle argues that the statutorily imposed minimum sentence of 10 years pursuant to section 841(b) (1) (A) does not serve its legislative purpose. He maintains that Congress did not intend to incarcerate "go-betweens" and other peripheral offenders for such a lengthy period. However, nothing in the language of the statute or its legislative history indicates that a peripheral offender is excluded from the sentencing scheme. Section 841(b) (1) (A) unambiguously imposes a minimum 10-year sentence on any person convicted of possession of 100 grams or more of methamphetamine with intent to distribute. Congress intended the statute to apply to anyone who trafficks in certain quantities of narcotics. United States v. Power, 881 F.2d 733, 739 (9th Cir. 1989). Thus, LaValle's argument that the legislative intent has been frustrated is without merit.

Second, LaValle argues that his 10-year sentence constitutes cruel and unusual punishment under the eighth amendment. We considered and rejected a similar argument in Hoyt, holding that the provisions of section 841(b) (1) (A) do not constitute cruel and unusual punishment. 879 F.2d at 512-14.

Last, LaValle argues that the 10-year sentence constitutes a violation of due process and equal protection under the law. We have previously rejected these arguments. Id. at 512.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

Honorable David A. Ezra, United States District Judge, District of Hawaii, sitting by designation