U.S. v. Mendoza, s. 88-1537

• Citation: 876 F.2d 639
• Decision Date: 31 May 1989
• Docket Number: 88-1560 and 88-1561,Nos. 88-1537,88-1538,s. 88-1537
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Parties: UNITED STATES of America, Appellee, v. David MENDOZA, Jr., Gerardo Garcia, Luis Pompilio Palacio, and Fabio Ramirez-Salazar, Appellants.

Page 639

876 F.2d 639

UNITED STATES of America, Appellee, v. David MENDOZA, Jr., Gerardo Garcia, Luis Pompilio Palacio, and Fabio Ramirez-Salazar, Appellants.

Nos. 88-1537, 88-1538, 88-1560 and 88-1561.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 17, 1988.

Decided May 31, 1989.

Lee Lawless, St. Louis, Mo., for Mendoza.

Mary Ott, St. Louis, Mo., for Ramirez-Salazar.

Bradley Dede, St. Louis, Mo., for Pompilio Palacio.

Lois Drossmann, St. Louis, Mo., for Garcia.

Fred Dana, St. Louis, Mo., for U.S.

Before FAGG and WOLLMAN, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Appellants raise numerous issues individually and jointly challenging their sentences and convictions under the federal laws prohibiting the possession and distribution of controlled substances. For the reasons that follow we affirm the judgments of conviction and sentences imposed by the district court. ¹

I. BACKGROUND

Appellants were charged in a three count indictment. Count I charged David Mendoza, Jr., Gerardo Garcia, Luis Pompilio Palacio, Fabio Ramirez-Salazar, and David Arguelles with conspiracy to possess with intent to distribute and conspiracy to distribute cocaine. Mendoza and Arguelles were charged with possession with intent to distribute cocaine in Count II and Count III charged them with distribution of cocaine. Mendoza and Arguelles plead guilty to all three counts in the indictment. The remaining appellants, Garcia, Ramirez-Salazar, and Palacio, were tried before a jury and convicted on Count I.

Mendoza was sentenced on each of his three convictions to terms of fifteen years imprisonment. In addition, Mendoza's incarceration under Counts II and III is to be followed by four years of supervised release; all of the sentences are to run concurrently. Arguelles was sentenced to concurrent terms of seven years for his convictions under Counts I, II, and III. ² Arguelle's incarceration under Counts II and III is to be followed by a four year term of supervised release.

Garcia, Ramirez-Salazar, and Palacio were also convicted under Count I, and sentenced to imprisonment terms of thirty years, twenty-five years, and fifteen years respectively. Appellants now appeal raising numerous issues. Some of the issues raised are unique to individual appellants, while others involve several of the appellants. We will discuss additional facts as warranted by the issues discussed.

II. DISCUSSION

A. Cruel and Unusual Punishment

The first issue concerns the fifteen year sentence the district court imposed on appellant Mendoza. ³ Mendoza argues that because he suffers from chronic kidney failure and his life expectancy is substantially shorter than normal his fifteen year sentence is in effect a life sentence and that it constitutes cruel and unusual punishment in violation of the Eighth Amendment. It is well settled that a sentence within the range provided by statute is generally not reviewable by an appellate court. United States v. Richard (Black Bear), 872 F.2d 253, 255 (8th Cir.1989). Furthermore, such a sentence which falls within the range prescribed by statute has never been found to be an Eighth Amendment violation. See, e.g., Hutto v. Davis, 454 U.S. 370, 372, 102 S.Ct. 703, 704, 70 L.Ed.2d 556 (1982). We do not believe that this case is an exception to these rules. While we sympathize with Mendoza's plight we do not believe that his sentence violates the Eighth Amendment. See, e.g., United States ex rel. Villa v. Fairman, 810 F.2d 715, 717-18 (7th Cir.1987) ("No doctrine excuses quadriplegics from punishment that is otherwise appropriate. The contention that quadriplegia is 'punishment enough'--like the parricide's claim that he deserves mercy as an orphan--is one addressed to the sentencing court's discretion alone.").

This is not a case where Mendoza is challenging his sentence because he will be unable to receive adequate medical treatment in prison. Indeed, Mendoza is likely to receive better care for his condition during his term of incarceration than he would receive on the outside. Accordingly, we reject Mendoza's Eighth Amendment claim.

B. Constitutionality of the Minimum Mandatory Penalties

Mendoza and Ramirez-Salazar claim that they were deprived of due process and equal protection because 21 U.S.C. Sec. 841(b)(1) differentiates punishment based on the quantity of drugs possessed without regard to the quality or purity of the drugs. Appellants argue that the minimum mandatory penalties violate due process because they have no rational relationship to the purpose of the penalties. The penalties were designed to provide greater punishment to larger scale drug dealers and manufacturers. Appellants, however, argue that without considering purity of the drug possessed a small time street dealer with a quantity of a drug which has been cut several times may receive a sentence greater than a manufacturer possessing a smaller but purer quantity of the same drug.

This same argument was rejected by the Ninth Circuit in United States v. Savinovich, 845 F.2d 834, 838-39 (9th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988). The Ninth Circuit noted that "[t]he classification scheme's focus on quantity is thus directly related to Congress' desire to prevent both wholesale and retail distribution of illegal drugs." United States v. Savinovich, 845 F.2d at 839. Therefore the mandatory punishments were not found to be unreasonable or irrational. See also United States v. Kidder, 869 F.2d 1328, 1333-35 (9th Cir.1989) (minimum mandatory sentences do not violate due process, equal protection, or ban on cruel and unusual punishments); United States v. Whitehead, 849 F.2d 849, 858-60 (4th Cir.) (same), cert. denied, --- U.S. ----, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988); United States v. Holmes, 838 F.2d 1175, 1177-78 (11th Cir.) (same), cert. denied, --- U.S. ----, 108 S.Ct. 2829, 100 L.Ed.2d 930 (1988).

We agree with the Ninth Circuit's analysis of this issue and thus conclude that the minimum mandatory sentencing does not violate any of the asserted appellants' rights protected under the United States Constitution. Appellants also argue that the minimum mandatory penalties violate the Eighth Amendment's ban on cruel and unusual punishments. We find this argument to be without merit.

C. Single Conspiracy versus Multiple Conspiracies

Appellants Garcia, Palacio, and Ramirez-Salazar argue that the evidence at trial established multiple conspiracies rather than a single conspiracy.

In order to evaluate the appellants' claim it is necessary to elaborate on the facts as they were developed at trial. Reviewing the evidence in the light most favorable to the government, the facts show that a Federal Drug Task Force Detective, Joseph Spiess, flew to California to enter preliminary negotiations with Mendoza and other unindicted persons for the sale of one kilogram of heroin and up to ten kilograms of cocaine. These negotiations set the price of a kilogram of heroin at $300,000. However, Mendoza later informed Detective Spiess that he was unable to complete the heroin deal. Negotiations then continued for the delivery of the ten kilograms of cocaine. The finalized deal provided that Mendoza would deliver an initial four kilograms of cocaine and if that delivery was successful a subsequent delivery of ten additional kilos would follow. Detective Spiess learned that Mendoza and another individual, later identified as Arguelles, were traveling from Los Angeles to St. Louis on an Amtrak train and they had the four kilos of cocaine in their possession. Two other detectives boarded the same Amtrak train when it stopped in Jefferson City, Missouri. Mendoza and his traveling companion were observed on the train by the two detectives who boarded the train in Jefferson City. When the train arrived in St. Louis on December 24, 1986, Detective Spiess met with Mendoza and Arguelles. The three went to Spiess's undercover van and once inside Mendoza and Arguelles each produced two kilos of cocaine. Further discussions transpired between Spiess and Mendoza concerning the delivery of the ten additional kilos of cocaine. Mendoza and Arguelles were then arrested.

Prior to the December 24, 1986, cocaine transaction, Mendoza and John Ybarra ⁴ met with Ramirez-Salazar and Palacio to discuss the price of the cocaine. They agreed that the price of the cocaine would be $23,000 a kilo to Mendoza and to Spiess the price would be $30,000 a kilo. After this meeting, Palacio delivered four kilograms of cocaine to Mendoza.

After learning of Mendoza's arrest in St. Louis, Ybarra turned himself in to local authorities in California. Ybarra then met with a DEA agent and he agreed to cooperate with DEA authorities. In early January, 1987, Ramirez-Salazar called Ybarra to find out what had happened to Mendoza. Ybarra explained that Mendoza was arrested in St. Louis. Ybarra then met with Ramirez-Salazar in late January and expressed his desire to work with Ramirez-Salazar in future deals. In subsequent meetings with Ramirez-Salazar, Ybarra continued to discuss the possibility of a future cocaine deal. Ybarra was also introduced to Garcia.

In early April, Ramirez-Salazar and Garcia met with Ybarra and two undercover officers to discuss the purchase of ten kilos of cocaine. They agreed to deliver three kilos initially and if that delivery was successful then the remaining seven kilos would be delivered. Palacio, who made the delivery to Mendoza in December 1987, was to make the delivery.

Ramirez-Salazar, Garcia, Ybarra, and the two undercover officers then went to the nearby location where the delivery was to take place. They had dinner and then Ramirez-Salazar and Garcia departed explaining that the delivery should take place in one hour. Palacio arrived with the cocaine in a shopping bag and it was inspected by one of the undercover officers. Palacio was then arrested and...