Jorge Canchola-larios, Plaintiff-appellant, v. United States of America, Defendant-appellee, 952 F.2d 406 (9th Cir. 1992)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 952 F.2d 406 (9th Cir. 1992) Submitted Dec. 5, 1991. *Decided Jan. 3, 1992

Before SCHROEDER and KOZINSKI, Circuit Judges, and McKIBBEN,**  District Judge.

MEMORANDUM*** 

On September 8, 1988, the district court sentenced Jorge Canchola-Larios to a ten-year term of imprisonment for possession of heroin with intent to distribute and a two-year term of imprisonment for conspiracy. The district court's order denying Canchola-Larios' Rule 35 motion was entered on December 19, 1989, and docketed on January 3, 1990. The notice of appeal filed January 3, 1990, was timely. Fed. R. App. P. 4(b).

Canchola-Larios contends that the district court should have calculated his sentence by considering only the quantity of pure heroin, 595.6 grams, in his possession at the time of arrest. The district court based the appellant's sentence upon the approximate one and one-half kilogram of contraband seized. Pursuant to 21 U.S.C. § 841(b) (1) (A) (i), any person who knowingly or intentionally possesses one kilogram or more of "a mixture or substance containing a detectable amount of heroin," shall be sentenced to a term of imprisonment not less than ten years. This court has interpreted a "mixture or substance" within the meaning of § 841(b) to include a "combination of a diluent agent and a drug sold in dilute form." U.S. v. Chan Yu-Chong, 920 F.2d 594, 597 (9th Cir. 1990). The district court properly denied appellant's motion to reduce or correct his sentence under Fed. R. Crim. P. 35.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

The Honorable Howard D. McKibben, United States District Judge for the District of Nevada, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3