Unpublished Disposition, 927 F.2d 612 (9th Cir. 1991)

MEMORANDUM^* 

The Los Angeles Police apprehended Leonard Richardson with 797 grams of cocaine base and 102 grams of cocaine powder in his possession. Richardson was arrested and indicted for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a) (1) and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a) (1). Following a bench trial, Richardson was found guilty on both counts.

A probation officer then interviewed Richardson and calculated the Guidelines Sentencing Range. The base offense level was calculated to be 36. Because he continued to maintain his innocence even after his conviction, Richardson was not given a reduction for acceptance of responsibility. Richardson had no prior criminal record and was thus placed in criminal history category I. The probation officer then determined the applicable Guidelines Sentencing Range--188 to 235 months imprisonment--and found no basis for a departure.

At the sentencing hearing, Richardson's attorney argued that the Guidelines range was excessive. He noted that this was Richardson's first offense despite living his whole life (24 years at the time of sentencing) in South-Central Los Angeles. Richardson himself stated only: "I was convicted of a crime that I didn't do. I throw myself on the Court. I have three kids. That's all I can say."

The district judge expressed some sympathy for the view that the Guidelines range was excessive but believed that he was bound to impose a sentence within that range. He stated that the probation officer did not "find any mitigating circumstances [--] at least one that would be present in the guidelines. So, my function is fairly mechanical at this point. The only discretion I have is whether the sentence ought to be at the low, middle or high range of the guidelines." The district judge went on to state, "I have a choice of either imposing sentence at 188 months or at 235 months. I don't find any factor that the guidelines didn't consider and that's the test that would warrant a departure." The judge then sentenced Richardson to 188 months imprisonment to be followed by five years of supervised release.

Richardson now appeals his sentence. He argues first that the Sentencing Guidelines, as applied to him, violate his due process right to an individualized sentence. Second, he contends that his sentence constitutes cruel and unusual punishment in violation of the eighth amendment. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.

STANDARD OF REVIEW

Both questions presented raise issues of law, and are subject to de novo review. See, e.g., United States v. Brady, 895 F.2d 538, 539 (9th Cir. 1990) (whether application of the Guidelines violates due process is a question of law, reviewed de novo).

DISCUSSION

Preliminarily, there is a question whether Richardson's constitutional arguments are properly before the court. He did not raise either argument in the district court. However, because resolution of his claims depends only on issues of law, they may be raised for the first time on appeal. Jovanovich v. United States, 813 F.2d 1035, 1037 (9th Cir. 1987).

Richardson argues that the application of the Guidelines offends due process because it denies him an individualized sentence. He acknowledges that this contention was rejected in United States v. Brady, 895 F.2d 538 (9th Cir. 1990). In Brady, we assumed without deciding that there is a due process right to an individualized sentence in noncapital cases, but went on to hold that because the Guidelines consider various individual factors that have historically been considered important and provide for departures when a given factor is not taken into account, sentences imposed under the Guidelines are consistent with due process.

Richardson offers two reasons why Brady should not be controlling. First, he argues that it was simply wrong and should therefore be reconsidered. This argument must fail as it is not addressed to an en banc panel or the Supreme Court. We are bound by Brady.

Richardson also contends that while Brady held that sentences imposed under the Guidelines are not per se due process violations, it does not foreclose the possibility that, as applied in an individual case, the Guidelines may violate a putative due process right to an individual sentence. However, Brady is also dispositive on this point. Brady too argued that the Guidelines were invalid "as applied." We stated in response: "This argument seems to be merely a more specific facial challenge to the Guidelines, and as such would be subsumed within our decision of that issue." Id. at 543 (citing United States v. Harris, 876 F.2d 1502, 1504 (11th Cir.), cert. denied, 110 S. Ct. 417 (1989)).

Moreover, " [t]o the extent [that Richardson] state [s] a separate as applied due process claim, however, [he] fail [s] to demonstrate why the particular factors [he] enumerate [s] are essential to an individualized sentence." Brady, 895 F.2d at 543. Richardson contends that the Guidelines preclude consideration of the following factors: age; employment history; family and community ties; the fact that this was his first offense; and his lack of dependence on crime for his livelihood. Contrary to his assertion, two of these factors are expressly taken into account in the calculation of the Guidelines range. The fact that this was Richardson's first offense was reflected by his receiving no criminal history points. And whether a defendant depends on crime for his livelihood is taken into account by the career offender provision of the Guidelines. See U.S.S.G. Sec. 4B1.1.

The remaining criteria to which Richardson points--age, employment history, and family and community ties--do not play a role in the determination of the Guidelines range. Further, none of these factors ordinarily is considered relevant to whether a departure is appropriate. See U.S.S.G. Secs. 5H1.1 (age); 5H1.5 (previous employment record); 5H1.6 (family ties and responsibilities, and community ties). However, "these factors may be relevant and considered by the sentencing court in determining what sentence to impose within the applicable Guideline range...." Brady, 895 F.2d at 543 (discussing employment record and family and community ties).¹  Thus, as in Brady, the defendant here "is reduced to challenging the weight accorded to these factors under the Guidelines, rather than the absence of the Guidelines' consideration of them." Id. (emphasis in original). Since Brady held that there is no due process right to have a particular weight assigned to any sentencing factor, id. at 543-44, Richardson's "as applied" challenge fails.² 

Richardson claims that his sentence of 188 months (15 years and eight months) in prison constitutes cruel and unusual punishment. He first argues that the sentence is cruel and unusual because the Guidelines did not allow the sentencing judge to give sufficient weight to factors that he contends are relevant to his sentence. This argument essentially recapitulates his due process claim, and we reject it for the reasons given above. Moreover, Richardson cites no authority for the proposition that a sentence that is sufficiently particularized to satisfy due process may nonetheless be insufficiently particularized under the cruel and unusual punishment clause.³ 

Richardson also contends that the sentence is disproportionate to his crime. The eighth amendment "prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed." Solem v. Helm, 463 U.S. 277, 284 (1983). In Helm the Supreme Court struck down a life sentence without eligibility for parole imposed upon a defendant who had been convicted of passing a false check and who had six prior convictions for nonviolent felonies. While recognizing the "substantial deference" due legislatures "in determining the types and limits of punishments for crimes," id. at 290, the Court identified three factors to guide the proportionality inquiry: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed for other crimes in the same jurisdiction; (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id. at 292.

Richardson's principal complaint appears to be that the sentence was unduly harsh in light of the fact that this was his first offense. This argument does not technically fit any of the Helm criteria, all of which focus on the crime, rather than the criminal. Nonetheless, the Supreme Court did note in Helm that "a State is justified in punishing a recidivist more severely than it punishes a first offender," id. at 296, implying that whether a defendant has been convicted of a first offense is relevant to the cruel and unusual punishment question. Here, the fact that Richardson is a first offender was considered in determining his sentence. Under the Guidelines Richardson would have been punished more severely had he not been a first-time offender because he would have been placed in a higher criminal history category.

Application of the Helm test leads to the conclusion that the sentence--while harsh--did not violate the eighth amendment, even considering the fact that the offense was Richardson's first. The first factor looks to the gravity of the offense and the harshness of the penalty. Richardson received a sentence of over 15 years in prison for possession of substantial quantities of cocaine base and cocaine powder with intent to distribute. In United States v. Klein, 860 F.2d 1489, 1496 (9th Cir. 1988), we rejected the contention that narcotics trafficking is a "less serious" offense, analogous to the offense committed in Helm. We held that Congress could legitimately classify "possession of [more than 500 grams of cocaine] with intent to distribute [as] a grave offense." Id. at 1496 (emphasis in original).

To determine whether a sentence of nearly 16 years in prison is disproportionately severe for Richardson's "grave" first offense, the second step under the Helm test requires a comparison with other crimes in the same jurisdiction. Richardson was convicted of possessing over 500 grams of cocaine base, which under the Guidelines is equivalent to 50,000 grams of cocaine. See U.S.S.G. Sec. 2D1.1(c) (4) (drug quantity table). See also United States v. Malone, 886 F.2d 1162, 1166 (9th Cir. 1989) (holding that equating one gram of cocaine base with 100 grams of cocaine powder is rational). In United States v. Hoyt, 879 F.2d 505, amended on other grounds, 888 F.2d 1257 (9th Cir. 1989), we rejected an eighth amendment challenge to a ten-year mandatory minimum sentence for anyone--including a first-time offender--convicted of selling 5,000 grams or more of cocaine. We compared the sentence with those imposed for other federal crimes--including crimes that involve narcotics and crimes that do not--and found no disproportionality. Id. at 513. In light of the fact that Congress may treat the severity of drug trafficking offenses as proportionate to the quantity of drugs involved, see id. at 514, the conclusion that a sixteen-year sentence is not disproportionate here follows from the conclusion in Hoyt that a ten-year sentence is not disproportionate for a crime involving a quantity of narcotics equivalent to one tenth the quantity found in Richardson's possession.

Finally, the third Helm factor--a comparison with similar crimes in other jurisdictions--also does not support a finding of disproportionality. With respect to other federal jurisdictions, this factor has been rendered largely irrelevant by the passage of the Guidelines, a main purpose of which was to create greater uniformity nationally. Since the Guidelines control sentencing for crimes in all federal jurisdictions, the sentences for the same crime will not vary with jurisdiction. Richardson's range will mirror that of similar defendants all across the country. With respect to state jurisdictions, our decision in Hoyt demonstrates that Richardson's sentence is not disproportionate. We noted there that Florida and Nevada impose mandatory minimum prison sentences of 15 years for first offenders for bringing into the state a quantity of cocaine equivalent to less than that involved in the present case, while Georgia imposes a minimum sentence of 25 years. 879 F.2d at 513.

Under the Helm test, Richardson's sentence is not disproportionate, even considering his status as a first-time offender. Thus, there is no eighth amendment violation.

CONCLUSION

The sentence is AFFIRMED.