U.S. v. Belden

62 Citing cases

  1. U.S. v. Patterson

    292 F.3d 615 (9th Cir. 2002)   Cited 32 times
    Holding that a sentence of 188 months of imprisonment was not "grossly disproportionate" to the crime of manufacturing 100 or more marijuana plants, considering the gravity of the offense and the fact that the penalty imposed was both at the minimum of the Guideline range and well below the statutory maximum

    Patterson further contends that the destruction of the evidence violated his "constitutional right of access to evidence" under the Due Process Clause. See United States v. Belden, 957 F.2d 671, 673 (9th Cir. 1992). We review for an abuse of discretion the district court's decision whether to exclude evidence as a sanction for destroying or failing to preserve evidence.

  2. US v. Patterson

    No. 00-30306 (9th Cir. Aug. 6, 2001)

    Patterson further contends that the destruction of the evidence violated his "constitutional right of access to evidence" under the Due Process Clause. See United States v. Belden, 957 F.2d 671, 673 (9th Cir. 1992).

  3. U.S. v. Ibanez-Aguilar

    10 F. App'x 428 (9th Cir. 2001)

    We have previously rejected the argument that Congress violates either the equal protection or due process clause of the fourteenth amendment by equating 100 kilograms of marijuana with 100 marijuana plants. SeeUnited States v. Belden, 957 F.2d 671, 676 (9th Cir.1992) ("[U.S.S.G. section 2D1.1(c)'s] rationality lies in its recognition of a higher level of culpability for marijuana growers compared to those who merely possess the harvested product.

  4. U.S. v. Brown

    985 F.2d 478 (9th Cir. 1993)   Cited 36 times
    Holding that court could consider defendant's age at the time he committed prior offenses

    As an initial matter, we must determine whether the district court's refusal to depart is reviewable. United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992). Ordinarily, a sentencing court's decision not to depart is not reviewable unless the decision resulted from a legal determination that the guidelines prevented departure.

  5. U.S. v. Beaver

    984 F.2d 989 (9th Cir. 1993)   Cited 1 times
    Rejecting argument that weight or potential yield of marijuana plants is relevant under 21 U.S.C. § 841(b)

    "`[T]he section's rationality lies in its recognition of a higher level of culpability for marijuana growers compared to those who merely possess the harvested product.'" Id. (quoting United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992)). The statute is not ambiguous and there is simply no indication, in the statute or elsewhere, that Congress meant to impose the plant-kilogram equivalency only with respect to exact quantities of 100 and 1000 plants, while examining the actual yield of the plants falling in between these numbers.

  6. U.S. v. Smith

    961 F.2d 1389 (8th Cir. 1992)   Cited 11 times
    In Smith, the Eighth Circuit, in upholding the constitutionality of 21 U.S.C. § 841(b)(1)(B)(vii) and its companion sentencing guideline, cited to the various circuits that had reached the same conclusion.

    Like the district court below, the circuit courts which have addressed this argument have upheld the challenged provisions. See United States v. Lee, 957 F.2d 778, 784 (10th Cir. 1992) (section 841(b)(1)(B)(vii)'s five-year minimum for 100 plants or 100 kilograms does not violate equal protection); United States v. Belden, 957 F.2d 671, 675-76 (9th Cir. 1992) (U.S.S.G. § 2D1.1 withstands due process challenge); United States v. Webb, 945 F.2d 967, 968-69 (7th Cir. 1991) (U.S.S.G. § 2D1.1 constitutional), cert. denied, ___ U.S. ___, 112 S.Ct. 1228, 117 L.Ed.2d 463 (1992); United States v. Lewis, 762 F. Supp. 1314, 1315-17 (E.D.Tenn.) (same), aff'd., 951 F.2d 350 (6th Cir. 1991) (Table).

  7. U.S. v. Robinson

    35 F.3d 442 (9th Cir. 1994)   Cited 14 times
    In Robinson, we adopted the rule that marijuana cuttings are not plants for sentencing purposes unless there is "readily observable evidence of root formation."

    Here, the testimony of Deputy Jopes alone would have been sufficient to establish the existence of 108 plants. See United States v. Belden, 957 F.2d 671, 673-74 (9th Cir.) (conviction based on testimony of officers who made the initial plant counts; a number of the plants were subsequently mangled or destroyed), cert. denied, ___ U.S. ___, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992); United States v. Cody, 7 F.3d 1523, 1527 (10th Cir. 1993) (conviction based on officer's recollection of number of plants); United States v. Scalia, 993 F.2d 984, 988 (1st Cir. 1993) (same); United States v. Allen, 954 F.2d 1160, 1168-69 (6th Cir. 1992). Jopes's testimony did not stand alone, however: it was strongly corroborated by the testimony of Dr. Sances, who investigated Robinson's greenhouses one month after the arrest, and concluded that more than 100 plants had been growing there. See United States v. Lennick, 18 F.3d 814, 820 (9th Cir. 1994) (permissible to estimate number of plants based on circumstantial evidence such as the amount of harvested marijuana, number of pots, and size of utility bills).

  8. U.S. v. Eaton

    31 F.3d 789 (9th Cir. 1994)   Cited 32 times
    Holding that a circuit court has no jurisdiction to review a district court's discretionary decision not to depart downward from the guidelines, but would have jurisdiction if the district court based its decision on the belief that it did not have the authority to depart

    United States v. Morales, 972 F.2d 1007, 1011 (9th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1665, 123 L.Ed.2d 283 (1993). If, however, the court indicates that it would not depart even if it could, the sentence is not reviewable on appeal. United States v. Brown, 985 F.2d 478, 480-481 (9th Cir. 1993); United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992). B. Analysis

  9. U.S. v. Rose

    20 F.3d 367 (9th Cir. 1994)   Cited 30 times
    Finding that uncharged acts of money laundering may be considered in determining appropriate sentence under Sentencing Guidelines

    While this statement correctly pointed out that a juror's request for lenient sentencing is not a sufficient basis upon which to justify a departure, these and other of the judge's comments in the record do not alone establish that the judge believed more categorically that he either possessed or lacked authority to depart. Nonetheless, the Government is correct in pointing out that we have consistently upheld denials of departure motions framed in language similar to that used by the district court. See, e.g., U.S. v. Belden, 957 F.2d 671, 676 (9th Cir. 1992) (declining to review where district court found "no basis for departure"); United States v. Robinson, 958 F.2d 268, 272 (9th Cir. 1992) (deeming denial of motion unreviewable where district court found downward departure "not warranted"); United States v. Koenig, 952 F.2d 267, 273-74 (9th Cir. 1991) (finding discretionary refusal to depart where district court that motion did not "have a basis"). However, because Rose failed to identify a mitigating circumstance on which departure could be premised under 18 U.S.C. § 3553(b), we decline to disentangle the consequently non-dispositive issue of reviewability.

  10. United States v. Mims

    567 F. Supp. 2d 1059 (D. Minn. 2008)   Cited 27 times
    Holding Miranda waiver voluntary where, among other factors, interview was conducted in a reasonable, conversational tone

    In Smith, the Eighth Circuit, in upholding the constitutionality of 21 U.S.C. § 841(b)(1)(B)(vii) and its companion sentencing guideline, cited to the various circuits that had reached the same conclusion. See Smith, 961 F.2d at 1390 (citing United States v. Lee, 957 F.2d 778, 784 (10th Cir. 1992) (section 841(b)(1)(B)(vii)'s five-year minimum for 100 plants or 100 kilograms does not violate equal protection); United States v. Belden, 957 F.2d 671, 675-76 (9th Cir. 1992) (U.S.S.G. § 2D1.1 withstands due process challenge); United States v. Webb, 945 F.2d 967, 968-69 (7th Cir. 1991) (U.S.S.G. § 2D1.1 constitutional), cert. denied, 502 U.S. 1116, 112 S.Ct. 1228, 117 L.Ed.2d 463 (1992); United States v. Lewis, 762 F.Supp. 1314, 1315-17 (E.D.Tenn.) (same), aff'd., 951 F.2d 350 (6th Cir. 1991) (Table)). The court observed: