931 F2d 898 United States v. Toia

931 F.2d 898

Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony TOIA, Defendant-Appellant.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

No. 90-50284.

2

United States Court of Appeals, Ninth Circuit.

Submitted April 19, 1991.*
Decided April 24, 1991.

3

Before POOLE, D.W. NELSON and NOONAN, Circuit Judges

4

MEMORANDUM**

5

Anthony Toia appeals his sentence imposed following a guilty plea to conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Toia contends that: (1) the district court erred by determining that the methamphetamine involved in the offense of conviction weighed more than 1,000 grams; (2) the district court erred by failing to allow him to make a motion under 18 U.S.C. Sec. 3553(e) and/or U.S.S.G. Sec. 5K1.1 for a downward departure based on substantial assistance to the government; (3) the district court erred by not granting him downward departure from the United States Sentencing Guidelines (Guidelines) range for diminished capacity and/or for physical condition; (4) the district court erred by failing to give him a downward adjustment for minor role in the offense; and (5) he received a disproportionately severe sentence compared to his codefendants. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm in part and dismiss in part.

6

The base offense level for Toia's offense was determined to be 28. Toia received a two point downward adjustment for acceptance of responsibility. Based upon an adjusted offense level of 26 and a criminal history category I, Toia's Guidelines sentencing range was 63 to 78 months. U.S.S.G. Sec. 5A. Pursuant to U.S.S.G. Sec. 5G1.1, however, Toia's Guidelines sentencing range was set at 120 months because the maximum Guidelines range was below the statutory mandatory minimum sentence for possession with intent to distribute 1,000 grams or more of methamphetamine.1

7

* Weight of the Methamphetamine

8

Toia contends that the district court erred by finding that the weight of the methamphetamine relevant to sentencing was in excess of 1,000 grams. Toia argues that the district court disregarded the relevant testimony regarding the water absorption rate of methamphetamine when determining the weight of the drug at the time that it was seized.

9

The district court's resolution of a disputed sentencing factor is a factual finding reviewed for clear error. United States v. Upshaw, 918 F.2d 789, 791 (9th Cir.1990). "In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence ... provided that the information has sufficient indicia of reliability to support its probable accuracy." U.S.S.G. Sec. 6A1.3(a); see also United States v. Monaco, 852 F.2d 1143, 1149 (9th Cir.), cert. denied, 488 U.S. 1040 (1989). If the district court relies on materially false or unreliable information, the defendant's due process rights are violated. United States v. Messer, 785 F.2d 832, 834 (9th Cir.1986). Moreover, the district court must adhere to accurate and reliable means when calculating numerical amounts. United States v. Columbus, 881 F.2d 785, 787 (9th Cir.1989).

10

Here, the district court conducted an evidentiary hearing regarding the weight of the methamphetamine at the time of Toia's arrest. Toia's counsel conducted extensive examination of the Drug Enforcement Agency (DEA) chemist responsible for weighing the methamphetamine regarding the possibility that the methamphetamine had gained weight due to water absorption between the March 7, 1989 date of seizure and the April 25, 1989 date on which the methamphetamine was first weighed. The chemist testified that in his experience he had not "noticed any gain of methamphetamine of moisture." He went on to note that "[i]n general ... [methamphetamine] loses weight, but it doesn't gain weight." The chemist also testified that there was a reduction in drug weight between the time the methamphetamine was first weighed and each of two subsequent weight measurements due to the use of some of the drug in tests for purity, evaporation over time of the solvent in the methamphetamine, and the fact some of the drug sticks to the container when it is transferred from one bag to another.2

11

Agent Bryant of the San Diego Police Department testified that he seized the methamphetamine from Toia's vehicle at the time of Toia's arrest and placed it into a DEA evidence bag which was heat-sealed later that same day at the DEA office. A defense expert testified that methamphetamine does absorb moisture, thereby increasing its weight. However, this witness also testified that he believed that moisture absorption would be limited by the type of bag used and "very little" moisture would be absorbed if the bag was heat-sealed.

12

The method by which the district court determined the amount of methamphetamine was both reliable and accurate. See Columbus, 881 F.2d at 787. Therefore, in light of the above testimony, we hold that the district court did not clearly err in determining that the amount of methamphetamine seized from Toia weighed more than 1,000 grams at the time of Toia's arrest. See Upshaw, 918 F.2d at 791.

II

Downward Departures

13

A. Motion for Downward Departure Based Upon Substantial Assistance to the Government.

14

Toia contends that the district court erred by refusing to allow him to make a motion for downward departure under 18 U.S.C. Sec. 3553(e) and/or U.S.S.G. Sec. 5K1.1 based on substantial assistance to the government.3 "Each of these provisions, however, explicitly conditions such a downward [departure] 'upon motion of the government'--a prerequisite that is not met here." United States v. Ayarza, 874 F.2d 647, 653 (9th Cir.1989), cert. denied, 110 S.Ct. 847 (1990).

15

We have previously held that "section 3553 and section 5K1.1 are not unconstitutional insofar as they allow only the Government to seek a departure from the minimum mandatory sentence to reflect a defendant's 'substantial assistance." Id. Therefore, the district court did not err by declining to allow Toia to make a motion to depart downward under 18 U.S.C. Sec. 3553(e) and/or U.S.S.G. Sec. 5K1.1. See id.4

16

B. Denial of Downward Departures Based on Diminished Capacity and/or Physical Condition.

17

"[A] district court's discretionary decision not to depart downward from the Guidelines is not subject to review on appeal." United States v. Morales, 898 F.2d 99, 103 (9th Cir.1990).

18

The district court considered and rejected Toia's evidence in support of his request for downward departure based on diminished mental capacity and physical incapacity. Toia was sentenced to 120 months incarceration, within the Guidelines range determined to be applicable. Therefore, Toia's requests for downward departure are not subject to our review. See Morales, 898 F.2d at 103.

III

Minor Role in the Offense

19

Toia contends that the district court erred by failing to grant him a downward adjustment for his role in the offense.

20

A downward adjustment of two points for a minor role in the offense is provided for under U.S.S.G. Sec. 3B1.2 and is intended "to cover defendants who are plainly among the least culpable of those involved in the conduct of a group." U.S.S.G. Sec. 3B1.2, comment. n. 1. However, when "the district court would have imposed the same sentence regardless of its determination on the [Guidelines offense level adjustment] issue, our resolution of the parties' dispute on this matter would be purely advisory." United States v. Cooper, 912 F.2d 344, 348 (9th Cir.1990); see also United States v. Munster-Ramirez, 888 F.2d 1267, 1272-73 (9th Cir.1989).

21

Here, as noted several times by the district court, the issue of potential adjustments to Toia's base offense level were academic in light of the ten year minimum sentence the court was required to impose by statute. Therefore, we decline to review this issue. See Cooper, 912 F.2d at 348; Munster-Ramirez, 888 F.2d at 1273.

IV

Disproportionate Sentence

22

Toia contends that the district court erred by imposing a more severe sentence on him than on his allegedly more culpable codefendants. Toia argues that the sentence he received violated his rights to substantive and procedural due process as well as his right to an individualized sentence.

23

"A sentence within the statutory limits is generally not reviewable unless there are constitutional concerns." United States v. Citro, 842 F.2d 1149, 1153 (9th Cir.), cert. denied, 488 U.S. 866 (1988). "When there is substantial disparity in sentences imposed upon different individuals for engaging in the same criminal activity, the preservation of the appearance of judicial integrity and impartiality requires that the sentencing judge record an explanation." United States v. Capriola, 537 F.2d 319, 321 (9th Cir.1976). Remand, however, is only required where "the record is devoid of reasons to support the disparity." Citro, 842 F.2d at 1153. Further, there is no constitutional right to individualized sentences in non-capital criminal cases. Lockett v. Ohio, 438 U.S. 586, 605 (1978); United States v. Belgard, 894 F.2d 1092, 1100 (9th Cir.1990).

24

Here, Toia pled guilty to conspiracy to possess with intent to distribute methamphetamine and was sentenced to the statutory mandatory minimum of 120 months incarceration. None of Toia's codefendants pled guilty to as severe an offense, nor were any of them subject to a ten year mandatory minimum sentence.

25

The facts in the record regarding Toia's offense of conviction support the severity of the sentence imposed on Toia. See Citro, 842 F.2d at 1153. Toia's contention that his liberty interest in individualized sentencing has been violated has no legal foundation because there is no liberty interest in individualized sentencing. See Belgard, 894 F.2d at 1100. Therefore, the disparity between the sentence received by Toia and those received by his codefendants does not implicate Toia's due process rights. See id.; Citro, 842 F.2d at 1154.

26

AFFIRMED IN PART, DISMISSED IN PART.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, appellant's request for oral argument is denied

**

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

1 U.S.S.G. Sec. 5G1.1 reads in relevant part:

(b) Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.

21 U.S.C. Sec. 841(b)(1)(A)(viii) provides that any person violating 21 U.S.C. Sec. 841(a) and in possession of "1 kilogram or more of a mixture or substance containing a detectable amount of methamphetamine its salts, isomers, or salts of its isomers ... shall be sentenced to a term of imprisonment which may not be less than 10 years."

2

The DEA chemist testified that he weighed the drug on three different occasions. On April 25, 1989, approximately one and one half months after Toia's arrest and the seizure of the drug, the methamphetamine weighed 1,007.9 grams. On October 3, 1989, the methamphetamine weighed 998.7 grams. On February 22, 1990, the methamphetamine weighed 995.3 grams

3

18 U.S.C. Sec. 3553(e), entitled "Limited authority to impose a sentence below a statutory minimum," provides in relevant part:

Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.

U.S.S.G. Sec. 5K1.1 provides in relevant part:

Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.

4

We will not address Toia's allegation that the government's failure to recommend downward departure was analogous to a breach of the plea agreement because this argument was not raised below. See United States v. Nakagawa, 924 F.2d 800, 803-804 (9th Cir.1991)