874 F2d 817 United States v. Freydell

874 F.2d 817

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Mauricio FREYDELL aka Max Freidel; Max Frizel, Defendant-Appellant.

No. 88-1163.

United States Court of Appeals, Ninth Circuit.

Submitted* March 23, 1989.
Decided April 20, 1989.

Before JAMES R. BROWNING, FARRIS and WILLIAM A. NORRIS, Circuit Judges.

1

MEMORANDUM**

2

Mauricio Freydell was sentenced to a mandatory minimum ten-year term pursuant to 21 U.S.C. Sec. 841(b)(1)(A) for distribution of cocaine in excess of 5 kilograms and to a five-year mandatory minimum pursuant to 21 U.S.C. Sec. 841(b)(1)(B) for distribution of cocaine in excess of 1 kilogram. The sentences are to run concurrently. Freydell appeals, contending the mandatory minimum sentencing provisions of 21 U.S.C. Secs. 841(b)(1)(A) and (B) violate the eighth amendment's prohibition against cruel and unusual punishment. He also contends these provisions violate both the due process and equal protection components of the fifth amendment because the mandatory minimum penalties are based upon quantities of controlled substances without consideration of the purity of the substance or the role of the offender.

3

Freydell's eighth amendment challenge must fail. We have held that mandatory minimum sentences imposed pursuant to 21 U.S.C. Sec. 841(b)(1)(A) and (B) do not violate the eighth amendment's prohibition against cruel and unusual punishment. See United States v. Kinsey, 843 F.2d 383, 392-93 (9th Cir.1988); United States v. Klein, 860 F.2d 1489, 1495-99 (9th Cir.1988); United States v. Ramos, 861 F.2d 228, 232 (9th Cir.1988).

4

Freydell's due process and equal protection challenge also must fail. We have held that "[n]either due process nor equal protection concerns are implicated by appellant's [five year mandatory minimum] sentence under 21 U.S.C. Sec. 841(b)(1)(B)." Ramos, 861 F.2d at 232; Klein, 860 F.2d at 1500-01; United States v. Savinovich, 845 F.2d 834, 839 (9th Cir.1988). We reached the same result when considering the ten-year mandatory minimum sentence imposed under Sec. 841(b)(1)(A). See Kinsey, 843 F.2d at 393-94.

5

AFFIRMED.

*

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)

**

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