Unpublished Disposition, 935 F.2d 277 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 277 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Armando NIETO, Defendant-Appellant.

No. 88-5064.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1991.Decided June 12, 1991.

Before HUG, WILLIAM A. NORRIS and LEAVY, Circuit Judges.


MEMORANDUM* 

Appellant appeals his sentence upon his guilty plea to two counts of money laundering in violation of 18 U.S.C. § 1956(a) (1) & (2). Appellant was sentenced under pre-guideline law.

Appellant first contends that the district court failed to explain its reasons for sentencing him to a harsher sentence than his co-defendants, relying on United States v. Capriola, 537 F.2d 319, 321 (9th Cir. 1976). Subsequent cases have limited Capriola to circumstances in which individuals are punished for exercising their right to go to trial. See United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986); United States v. Hall, 778 F.2d 1427, 1428-29 (9th Cir. 1990); United States v. Garrett, 680 F.2d 650, 652 (9th Cir. 1982). As "all the sentences imposed upon the co-defendants are within statutory limits and no defendant's right to stand trial is implicated," the district judge was not required to give reasons on the record for the difference in the sentences, and there is no principle under which we can review the sentence in this case. Endicott, 803 F.2d at 510.

Appellant also contends that the government breached the plea agreement by failing to inform the sentencing judge that appellant was a courier who did not have a leadership role in the criminal activity. Appellant claims that the government breached the agreement by arguing at sentencing that appellant was one of the "most prolific couriers" in the case and "delivered money on at least seven separate occasions alleged in the indictment and also prior to the times alleged in the indictment." Excerpts of Record, (E.R.) 5 at 8. However, being a prolific courier is consistent with not having a leadership role.

Appellant also objects to the government's statement that appellant had a "very important role [in the narcotics distribution scheme] and he was intimately involved in the distribution of that 28 kilograms of cocaine." E.R. 5 at 8-9. However, the district judge expressly stated that this information would not be considered because he was not sentencing appellant on the basis of this conduct. E.R. 5 at 10-11.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3