United States v. 2005-12-14 | 05-10146 | USA VALBINO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 05-10146
Plaintiff-Appellee, D.C. No.
v.  CR-03-00417-DAE
EUGENE K. ALBINO, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Submitted December 8, 2005*
San Francisco, California
Filed December 15, 2005
Before: Melvin Brunetti, Alex Kozinski, and
Barry G. Silverman, Circuit Judges.
Per Curiam Opinion
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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COUNSEL
Pamela J. Byrne, Assistant Federal Defender, Honolulu,
Hawaii, for the appellant.
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Thomas Muehleck, Assistant United States Attorney, Hono-
lulu, Hawaii, for the appellee.
OPINION
PER CURIAM:
Eugene Albino appeals the ten-year sentence imposed by
the district court following his guilty plea to growing 2,349
marijuana plants. Albino argues that 21 U.S.C. § 841(b)(1)
(A)(vii), which classifies 1000 or more marijuana plants,
regardless of weight, as equal to 1000 or more kilograms of
marijuana for purposes of the ten-year mandatory minimum
sentence, violates the Fifth and Eighth Amendments. We
affirm.
[1] We have rejected Albino’s Fifth Amendment argument
in United States v. Motz, 936 F.2d 1021, 1025 (9th Cir. 1991)
(holding that “[t]here is no constitutional requirement that the
penalty for an offense involving one marijuana plant be equal
to the penalty for an offense involving the quantity of dried
marijuana the plant would yield”) and United States v. Bel-
den, 957 F.2d 671, 676 (9th Cir. 1992) (recognizing that the
disparity in sentences between marijuana growers and mari-
juana possessors is rationally related to deterrence and a
higher level of culpability for marijuana growers).
[2] Albino’s Eighth Amendment claim also fails because
his sentence is not grossly disproportionate to his offense.
Albino pled guilty to growing 2,349 marijuana plants and
received a ten-year sentence, the minimum under the statute.
In reviewing criminal sentences for Eighth Amendment pro-
portionality, we “grant substantial deference to the broad
authority that legislatures necessarily possess in determining
the types and limits of punishments for crimes.” Solem v.
Helm, 463 U.S. 277, 290 (1983). In view of this deference “a
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reviewing court rarely will be required to engage in extended
analysis to determine that a sentence is not constitutionally
disproportionate.” Id. at 290 n.16. “Generally, as long as the
sentence imposed on a defendant does not exceed statutory
limits, this court will not overturn it on Eighth Amendment
grounds.” United States v. Parker, 241 F.3d 1114, 1117 (9th
Cir. 2001). Because Albino received the minimum sentence
under the statute, combined with the broad deference afforded
Congress to set criminal penalties, Albino’s sentence does not
violate the Eighth Amendment.
AFFIRMED.
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