U.S. v. Natal-Rivera
| Decision Date | 14 July 1989 |
| Docket Number | No. 88-2462,NATAL-RIVER,A,88-2462 |
| Citation | 879 F.2d 391 |
| Parties | UNITED STATES of America, Appellee, v. Aurorappellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Catherine A. Reinmiller, Kansas City, Mo., for appellant.
Thomas H. Newton, Kansas City, Mo., for appellee.
Before ARNOLD and MAGILL, Circuit Judges, and HENLEY, Senior Circuit Judge.
On appeal Aurora Natal-Rivera questions the sentence imposed by the district court 1 following her guilty plea to one count of distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(2) & (b)(1)(C). We affirm.
On March 15, 1988 a federal grand jury returned a six-count indictment against Natal-Rivera and her paramour Herodes Mur-Orosco charging them with distribution of cocaine and conspiracy to distribute cocaine. Mur-Orosco pleaded guilty to one count of conspiracy to distribute cocaine and inter alia was sentenced to 121 months imprisonment. Natal-Rivera pleaded guilty to one count of distribution of cocaine and inter alia was sentenced to 51 months imprisonment. For reversal, Natal-Rivera, who was born and reared in Puerto Rico, argues that (1) the Sentencing Guidelines violate the doctrines of separation and delegation of powers; (2) the district court, acting in accordance with the Guidelines, erred in calculating her offense level by including the alleged drug violations contained in certain counts which were dismissed; and (3) the district court, in following the Guidelines, declined to take into account as a mitigating factor the fact that her cultural background socialized her since childhood to follow her husband's every command. 2
The Supreme Court has foreclosed Natal-Rivera's delegation and separation of powers arguments. See Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 675, 102 L.Ed.2d 714 (1989). Second, Natal-Rivera argues that by taking into account her alleged offenses contained in the counts which were dropped, in accordance with the Sentencing Guidelines, 3 the district court in effect sentenced her for engaging in criminal activity without an adjudication of guilt. However, the record discloses that in her plea bargain agreement Natal-Rivera agreed to a recalculation of the precise amount taken into consideration at time of sentence. At no time has Natal-Rivera questioned the validity of her plea bargain agreement. We therefore reject her argument that the amount of cocaine involved in the dismissed counts could not be considered in sentencing and note that her sentence was within the statutory maximum for the one count to which she pleaded guilty. See Cummings v. United States, 831 F.2d 779, 780 (8th Cir.1987) (per curiam).
Last, Natal-Rivera argues that the Sentencing Guidelines are constitutionally infirm because they assertedly do not allow a sentencing court to consider the defendant's cultural background when imposing sentence. See 28 U.S.C. Sec. 994(d); Sentencing Guidelines Sec. 5H1.10. Historically, a difference in cultural background has been consistently rejected as an excuse for criminal activity. See, e.g., Rex v. Esop, 173 Eng.Rep. 203 (Cent.Crim.Ct.1836) (). It is but a small step from there to conclude that Congress may prevent considerations of cultural background from being a mitigating factor for that...
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