Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1989)

Nos. 90-30158 to 90-30160.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and O'SCANNLAIN, Circuit Judges, and GEORGE,^**  District Judge.

MEMORANDUM^*** 

As a result of his involvement in a 1985 arson and a 1986-87 conspiracy to steal and distribute marijuana, Clarence LaBreche was indicted for eight offenses. He pleaded guilty to four: arson, 18 U.S.C. § 844(i); conspiracy to possess marijuana with intent to distribute, 21 U.S.C. § 846; aiding and abetting the procurement and possession of marijuana, 21 U.S.C. § 841(1) (a); and using a firearm in a drug trafficking crime, 18 U.S.C. § 924(c) (1). The court found LaBreche had violated his probation for a prior drug-related offense, so it sentenced him for five offenses. Its application of pre-Guidelines law resulted in consecutive imprisonments totaling 39 years, followed by consecutive periods of supervised release totaling ten years.

The court entered its judgment on August 11, 1989. Within 120 days, LaBreche moved to reduce his sentences, meeting the deadline for such motions. Fed. R. Crim. P. 35(b) (1987 version), quoted in United States v. Thayer, 857 F.2d 1358, 1359 n. 1 (9th Cir. 1988). The district court denied any reduction.

DISCUSSION

LaBreche alleges that the government breached the plea agreement by a late-filed sentencing memorandum. He contends that his guilty pleas are consequently invalid, because they were not voluntarily and intelligently entered, entitling him to a new trial. The government argues that we have no jurisdiction over this issue because it should have been raised by an appeal within ten days of the judgment. See Fed. R. App. P. 4(b).

The government is correct. The filing deadline of Rule 4(b) is jurisdictional, United States v. Avendano-Camacho, 786 F.2d 1392, 1394 (9th Cir. 1986), and LaBreche did not meet it. A Rule 35 motion is not a means of correcting errors in the trial or other presentencing proceedings. Hill v. United States, 368 U.S. 424, 430 (1962). Rule 35 "presupposes a valid conviction." Redfield v. United States, 315 F.2d 76, 81 (9th Cir. 1963). As LaBreche's argument for a new trial exceeds the scope of a Rule 35 motion, it is beyond our jurisdiction of this appeal.

II. Legality of Sentences for Marijuana Offenses

LaBreche argues the court improperly compounded his punishment for a single criminal undertaking by imposing separate sentences. He attempts to bring his case within United States v. Palafox, 764 F.2d 558 (9th Cir. 1985) (en banc), by saying that the offenses of conspiracy and aiding and abetting both "arise under" 21 U.S.C. § 841(a) (1) and that he committed them "virtually at the same time, in the same place and with the same participants." We review de novo his challenge to the legality of his sentence. United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986), cert. denied, 479 U.S. 1094 (1987).

In Palafox, a defendant about to consummate a heroin sale provided the buyer, an undercover agent, with a sample. Palafox was convicted for (1) distributing the sample and (2) possessing, with intent to distribute, a larger package. 764 F.2d at 559. He appealed these separate convictions and sentences.

The en banc court viewed Palafox's offenses as "two criminalized steps of one transaction" that were "directed toward consummation of one criminal undertaking." Id. at 562-63. It affirmed the two convictions but recognized and applied " [t]he general rule under Sec. 841(a) (1) ... that where the defendant is convicted of multiple criminal steps leading to the same criminal undertaking, only one punishment should be imposed." Id.

The Palafox holding was "purposefully narrow [and] fact-specific." United States v. Fernandez-Angulo, 863 F.2d 1449, 1453 (9th Cir. 1988), modified on other grounds, 897 F.2d 1514 (1990) (en banc). Here, it is factually distinguishable. While LaBreche's aiding and abetting count was limited to events on October 16, the conspiracy covered a far longer time. It began sometime between the fall of 1986 and September 1987, continuing after October 16, 1987 to encompass overt acts on October 17-18.

Palafox does not change the long-standing principle that a defendant may receive separate sentences for a conspiracy and an underlying substantive offense where their elements are not identical. See Pereira v. United States, 347 U.S. 1, 11-12 (1953). Nor did Palafox overrule our earlier conclusion that "Congress did intend to allow the courts to impose consecutive sentences for conspiracy (21 U.S.C. § 846), and for substantive offenses (21 U.S.C. § 841(a) (1)), even when the proof necessary to obtain a conviction for the former was necessary to obtain a conviction for the latter." United States v. Wylie, 625 F.2d 1371, 1382 (9th Cir. 1980), cert. denied sub nom. Perluss v. United States, 449 U.S. 1080 (1981).

We affirm the legality of LaBreche's sentences.

LaBreche argues that his sentence was excessive in view of such factors as family hardships, his assistance to authorities and the sentences of codefendants. He does not contend that any component of his sentence exceeded statutory maximums.

Under pre-Guidelines law, we review the denial of a Rule 35 motion only for a clear abuse of discretion. United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.), cert. denied, 479 U.S. 963 (1986). Our authority to review a statutorily-authorized sentence is severely restricted and we may vacate only on narrowly defined grounds. E.g., United States v. Catabran, 884 F.2d 1288, 1289 (9th Cir. 1989) (per curiam) (no review of sentence within statutory limits absent constitutional concerns).

We reject LaBreche's argument that his sentence required reduction. His arguments about family hardships, assistance to authorities and his degree of remorse are not within the narrow spectrum of issues that permit appellate review of the length of a sentence. The court's refusal to reduce this sentence because of health problems was not an abuse of discretion. Cf. United States v. Thayer, 857 F.2d 1358, 1360 (9th Cir. 1988).

Similarly, we are unpersuaded that disparities among the aggregate sentences of LaBreche and his codefendants required any reduction. Most of the disparity stems from LaBreche's greater number of offenses (five) in comparison to his codefendants (one to three). "It is well within the discretion of the sentencing judge to impose disparate sentences upon the codefendants if the circumstances so require." United States v. Garrett, 680 F.2d 650, 652 (9th Cir. 1982); United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986).

IV. Alleged Failure to Consider Individualized Factors

LaBreche argues that the court sentenced him mechanically, failing to differentiate his sentence from those of his codefendants. We reject the government's challenge to our jurisdiction over this issue, finding it properly before us because it falls within the literal terms of Rule 35.

When a court fails to exercise its broad pre-Guidelines discretion to individualize sentencing, a remand for resentencing is warranted. United States v. Barker, 771 F.2d 1362, 1365 (9th Cir. 1985). "In each case, a criminal sentence must reflect an individualized assessment of a particular defendant's culpability rather than a mechanistic application of a given sentence to a given category of crime." Id. "Whether sound discretion has been exercised must be answered in each case through a thorough review of the record." Id. at 1366.

The only suggestion of mechanical sentencing here is the bald fact of the sentences themselves. Unlike the record in Barker, we have no indication that "the court was overwhelmingly motivated by its assessment of the crime rather than its individual evaluation of each defendant." Id.

CONCLUSION

We lack jurisdiction to consider whether the plea agreement was breached. We find no merit in LaBreche's arguments that he received illegal multiple sentences, that his sentences were excessive and that the court improperly failed to individualize his sentence. As the district court did not abuse its discretion, we AFFIRM the denial of his motion under Rule 35.