Unpublished Disposition, 930 F.2d 30 (9th Cir. 1991)

MEMORANDUM^* 

Felipe Lacayo Peralta appeals his sentence of two concurrent terms of sixty (60) months incarceration, imposed following a jury conviction for possession with intent to distribute and distribution of cocaine base in violation of 21 U.S.C. § 841(a) (1). We affirm.

* Peralta contends that the district court erred in treating this case as one involving 8.7 grams of cocaine base, the entire amount of drugs Rodriguez possessed, rather than solely the 4.9 grams he transferred to undercover officer Jordane.¹  We must "accept the findings of fact of the district court unless they are clearly erroneous." 18 U.S.C. § 3742(d); United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989).

As Peralta argues, the record shows that he only had actual physical possession over the 4.9 grams of crack he distributed to officer Jordane. Possession of a controlled substance under Sec. 841(a) (1), however, may be constructive as well as actual. United States v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986). Constructive possession may be found if "the evidence establishes a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised a dominion and control over the substance." Id.; see also United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.), cert. denied, 488 U.S. 943 (1988). Such a connection "may be demonstrated by direct or circumstantial evidence that the defendant had the power to dispose of the drug" or by evidence showing "the defendant's participation in a 'joint venture' to possess a controlled substance." Disla, 805 F.2d at 1350 (citations omitted). "Mere proximity to the drug, presence on the property where it is located, or association with the person who controls the drug," without more, is insufficient to support a finding of possession. Savinovich, 845 F.2d at 837; see also Disla, 805 F.2d at 1351.

Peralta's relationship with the drugs is not that of a mere bystander. It is undisputed that Peralta initiated the drug transaction with officer Jordane and led her to a particular quantity of drugs in a particular location. Peralta then obtained the desired amount of drugs from Rodriguez, counted out the specified quantity of crack "rocks" and transferred the drugs to officer Jordane, who gave Peralta the money. Moreover, as Peralta has conceded, one could reasonably infer that had Jordane requested a larger amount of drugs, Peralta could have instructed Rodriguez to supply him with the necessary amount to transfer. From these facts, the district court could conclude that Peralta and Rodriguez were in business together, and that by virtue of that relationship, Peralta had sufficient control over the entire amount of drugs such that he could "dispose" of them to a customer. In these circumstances, we cannot say that the district court clearly erred in finding that Peralta possessed the entire 8.7 grams of cocaine base and treating his criminal conduct as involving that amount. See also U.S.S.G. Sec. 1B1.3(a) (2) (in determining proper offense level, district court is to consider all "relevant conduct" including "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction").

II

Peralta also contends that because the charged offenses stemmed from a single transaction, the district court erred in sentencing him for both possession with intent to distribute and distribution, subjecting him to impermissible multiple punishments. In support, Peralta relies on United States v. Palafox, 764 F.2d 558, 562 (9th Cir. 1985) (en banc) and United States v. Oropeza, 564 F.2d 316 (9th Cir. 1977), cert. denied, 434 U.S. 1080 (1978).

These decisions are inapposite. In Palafox, we expressly distinguished cases such as this one where the defendant distributes a portion of the contraband, but retains the remainder with the intent to distribute to others. Palafox, 764 F.2d at 563 (individual "who hands an sample to a passerby and who possesses the remainder with the intent to distribute it to others should receive multiple punishments"); see also United States v. Palacios, 835 F.2d 230, 233-34 (9th Cir. 1987) (two sentences proper for passing counterfeit money and possessing counterfeit money when defendant passed only some of the fake bills in his possession). Because Peralta and Rodriguez distributed only a portion of the cocaine to officer Jordane, and the district court could conclude that they retained the balance to distribute to others, the district court was not required to stay the imposition of sentence on one count. Compare United States v. Mendoza, 902 F.2d 693, 698-99 (8th Cir. 1990) (multiple punishments improper for separate convictions of possession and distribution of the same quantity of drugs at the same time); Oropeza, 564 F.2d at 323-24 (sentences for both possession and distribution improper when a single act of distribution forms the basis for both charges). The two violations of Sec. 841(a) (1) in this case are not merely component offenses of a single drug sale and can support separate punishments.

III

Peralta finally contends that his sentence of sixty (60) months incarceration constitutes cruel and unusual punishment because it is disproportionate to the crime committed. Peralta argues that similar offenses are punished much less severely in California state courts. With regard to the eighth amendment, however, we must "grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes." Solem v. Helm, 463 U.S. 277, 290 (1983).

In enacting 21 U.S.C. § 841(b) (1) (B) (iii) (mandatory minimum sentence for more than 5 grams of cocaine base), Congress intended to impose stiff penalties for those involved with crack cocaine. We have repeatedly held that these mandatory minimum penalties, from which the guideline ranges are derived, do not constitute cruel and unusual punishment. See, e.g., United States v. Kidder, 869 F.2d 1328, 1333 (9th Cir. 1989) (citing cases); Savinovich, 845 F.2d at 840; see also United States v. Malone, 886 F.2d 1162, 1166 (9th Cir. 1989). Nothing in the record in this case requires that we rule differently here. Peralta's five year sentence, imposed pursuant to the guidelines and well below the statutory maximum penalty, is not cruel and unusual punishment.

AFFIRMED.