980 F. 2d 739 - United States v. Fisher

980 F2d 739 United States v. Fisher

980 F.2d 739

UNITED STATES of America, Plaintiff-Appellee,
v.
Jerry Wayne FISHER, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellant,
v.
Jerry FISHER, Defendant-Appellee,

Nos. 91-10201, 91-10254.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 2, 1992.
Decided Nov. 13, 1992.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before GOODWIN, FARRIS and PREGERSON, Circuit Judges.

1

MEMORANDUM*

2

Fisher raises a number of issues on appeal. We agree that the duress instruction lacked a proper factual basis, see United States v. Beltran-Rios, 878 F.2d 1208, 1213 (9th Cir.1989), but under all of the circumstances, the error was harmless beyond any doubt. Evidence of guilt was overwhelming.

3

The government cross-appeals the failure of the trial court to sentence Fisher to the mandatory minimum required under 21 U.S.C. § 841(b)(1)(B) (1988). We agree with the government that application of the statute does not constitute cruel and unusual punishment. See Harmelin v. Michigan, 111 S.Ct. 2680, 2701 (1991). The trial court recognized, as it must, the mandatory language of the statute. Under the unusual and peculiar facts of this isolated case, however, the court could properly conclude that the statute did not apply.

4

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit rule 36-3