Summary
holding irrelevant the defendants' belief that they were transporting marijuana rather than cocaine because under 21 U.S.C. § 841 the "nature of the controlled substance becomes relevant only as a sentencing factor"
Summary of this case from United States v. PodgorskiOpinion
No. 98-2962EA
Submitted: February 4, 1999
Filed: February 24, 1999
On Appeal from the United States District Court for the Eastern District of Arkansas.
Counsel who represented the appellant was John Wesley Hall, Jr. of Little Rock, Arkansas. Also appearing on the brief was William A. McLean.
Counsel who represented the appellee was Gwendolyn D. Hodge, Assistant United States Attorney, of Little Rock, Arkansas. Also appearing on the brief was Paul J. Casey.
Before McMILLIAN, RICHARD S. ARNOLD, and MORRIS SHEPPARD ARNOLD, Circuit Judges
Gloria Rodriguez-Ochoa and Rosa Martinez-Simental appeal the sentences imposed by the District Court following their guilty pleas to possession of a controlled substance with intent to deliver, in violation of 21 U.S.C. § 841(a)(1). According to Ms. Rodriguez-Ochoa's presentence report, she was the driver and Martinez-Simental was a passenger in a vehicle stopped for speeding; a consensual search of the vehicle revealed 11.41 kilograms of methamphetamine. Before sentencing, defendants jointly moved for a downward departure under U.S. Sentencing Guidelines Manual § 5K2.0, p.s. (1998), based on their claim that they mistakenly believed that they were transporting marijuana, not methamphetamine. At the sentencing hearing, the District Court denied the motion; sentenced Ms. Rodriguez-Ochoa to 10 years imprisonment, the statutory minimum, followed by 5 years supervised release; and sentenced Ms. Martinez-Simental to 5 years and 10 months imprisonment followed by 5 years supervised release. The shorter sentence was imposed on Ms. Martinez-Simental because she had no criminal history and therefore qualified for a "safety valve" reduction in sentence. See U.S.S.G. § 5C1.2.
The Honorable Garnett Thomas Eisele, United States District Judge for the Eastern District of Arkansas.
On appeal, defendants argue that the Guidelines did not contemplate a mistake of fact such as theirs, and thus it should be the basis for a downward departure under section 5K2.0. We disagree. The Sentencing Commission explicitly considered the effect of a drug defendant's mistake of fact on his or her sentencing accountability. See U.S. Sentencing Guidelines Manual § 1B1.3, comment. (n. 2(a)(1)) (1998). The District Court correctly concluded here that it could not depart on that basis. The crime to which defendants pleaded guilty was a violation of 21 U.S.C. § 841(a)(1), possessing a controlled substance (any controlled substance) with the intent to distribute it. The nature of the controlled substance becomes relevant only as a sentencing factor. See 21 U.S.C. § 841(b)(1)(A)(viii) (mandatory minimum of ten years for certain quantities of methamphetamine). Cf. United States v. Strange, 102 F.3d 356, 359-61 (8th Cir. 1996) (irrelevant that defendants thought they were transporting marijuana instead of cocaine).
As the District Court said, there is a sense in which the sentence can be described as unfair. But "it is certainly within the province of Congress to resolve that there is some deterrent value in exposing a drug trafficker to liability for the full consequences, both expected and unexpected, of his own unlawful behavior." Id. at 361.
Affirmed.