Appeal from the United States District Court for the Eastern District of California. Robert E. Coyle, Chief Judge, Presiding. D.C. No. CR-90-00085-REC.
Before: Pregerson, Ferguson, and O'scannlain, Circuit Judges.
On October 15, 1990, Godinho pled guilty to manufacturing and aiding and abetting the manufacture of a controlled substance in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court sentenced him to 78 months imprisonment, the bottom of the guideline range as determined in the presentence report. Godinho raises a number of challenges to his Guidelines sentence.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm the district court's decision to sentence Godinho to 78 months' imprisonment.
A. Due Process and Equal Protection Claims
Godinho argues that the Guidelines violate his rights to due process and equal protection by sentencing him on the basis of an erroneous presumption that each marijuana plant is capable of producing 1 kilogram of marijuana. The Guidelines treat each plant for sentencing purposes as the equivalent of 1 kilogram of marijuana in cases where more than 50 plants are involved. See United States Sentencing Commission, Guidelines Manual, § 2D1.1 (Nov. 1990).*fn1 Godinho contends that his sentence should have been based on a "reasonable approximation of the actual quantity" of marijuana that could be produced by the marijuana plants, i.e., allegedly 2 to 3 ounces per plant.
The Guidelines approach does not offend due process as long as it "bears some reasonable relation to a 'proper legislative purpose,' and is 'neither arbitrary nor discriminatory.'" United States v. Klein, 860 F.2d 1489, 1501 (9th Cir. 1988) (quoting Nebbia v. New York, 291 U.S. 502 (1934)); see also United States v. Streeter, 907 F.2d 781, 790 (8th Cir. 1990) ("a Guideline that is arbitrary and capricious cannot be given effect in court"). The question is not whether the Guidelines approach is the best one, but whether it is rational.*fn2
Setting punishment on the basis of the number of plants involved is not arbitrary or irrational. Under the Guidelines, sentencing is based on the weight of the leaves in cases where dry marijuana leaves are involved. But sentencing a defendant purely on the weight of live plants would make little sense "because the actual amount of usable marijuana had the plant been allowed to fully grow is unknown," United States v. Corley, 909 F.2d 359, 361 (9th Cir. 1990) (quoting U.S. v. Graham, 710 F.Supp. 1290, 1291 (N.D. Cal. 1989). Moreover, the usable amount of marijuana may be, in some cases, much greater than the weight of the plant.
Setting a fixed punishment per plant eliminates the need for complicated hearings to determine the potential yield of a given plant. According to the DEA, the average yield per marijuana plant is 400 grams. But sophisticated growing techniques could produce up to 1 kilogram per plant. 54 Fed. Reg. 9121, 9136 (1989). The Guidelines sentencing scheme for growing marijuana therefore has some rational basis in evidence supplied by the DEA. No more is required to pass constitutional scrutiny. See United States v. Motz, 936 F.2d 1021, 1025 (9th Cir. 1991) ("there 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.").
B. Eighth Amendment Challenge
Godinho argues that his 78 month sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. He contends that the sentence is "entirely disproportionate to the gravity of the offense." As support for his argument, he cites a number of other allegedly more serious offenses where a lower base offense level is set by the Guidelines.
In Harmelin v. Michigan, 111 S. Ct. 2680 (1991), the Supreme Court rejected the defendant's Eighth Amendment challenge to his sentence of life imprisonment without parole for possessing 672 grams of cocaine. Viewed against the backdrop of Harmelin, Godinho's argument fails. If life imprisonment for possessing 672 grams of cocaine does not violate the Eighth Amendment, neither would a 6 and 1/2 year sentence for cultivating 508 marijuana plants. Justice Kennedy's concurrence in Harmelin makes this clear by citing with approval the Court's 1982 decision upholding against an ...