Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Decided March 4, 1988.
E.D.Cal.
AFFIRMED.
Appeal from the United States District Court for the Eastern District of California; Robert E. Coyle, District Judge, Presiding.
Before TANG, CANBY and BRUNETTI, Circuit Judges.
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.
I.
Brewer appeals pro se the district court's denial, without a hearing, of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence. He was found guilty in 1983 of nineteen counts of narcotics and weapons violations arising from his involvement in the manufacture and distribution of phenyl-z-propanone (P2P) and methamphetamine in 1981 and 1982. For the reasons set forth by the district court we affirm.
II.
This court reviews a district court's decision regarding a petition to vacate, set aside, or correct a sentence de novo. United States v. Quan, 789 F.2d 711 (9th Cir.1986).
III.
A hearing on a section 2255 motion is required "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255 (1982); Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985). Brewer is not entitled to a hearing on any of his claims.
A. Separate Sentences Under 28 U.S.C. § 841(a)(1)
The district court sentenced Brewer under 21 U.S.C. § 841(a)(1) for (1) manufacture of P2P, (2) manufacture of methamphetamine, and (3) possession with intent to distribute methamphetamine. Brewer charges that the three offenses constitute a single statutory violation, and hence the imposition of consecutive sentences for those offenses violated his Fifth Amendment Double Jeopardy rights. U.S. Const., amend. V.
In United States v. Palafox, 764 F.2d 558, 563 (9th Cir.1985) (en banc) the court stated:
The general rule under § 841(a)(1) is ... that where the defendant is convicted of multiple criminal steps leading to the same criminal undertaking, only one punishment should be imposed.
The Palafox rule, however, applies only "when more than one offense arises under § 841(a)(1) from a single criminal undertaking ..., and each offense is committed at virtually the same time, in the same place, and with the same participants...." Id. at 562; United States v. Andersson, 813 F.2d 1450, 1459 (9th Cir.1987).
Separate convictions and punishments are appropriate in this case. P2P and methamphetamine are both controlled substances, and there was evidence that each can be manufactured without producing the other. Multiple sentences may be imposed for two related offenses when each "required proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). Moreover, several of the offenses were committed at different times and places and involved numerous participants. Methamphetamine and P2P were manufactured at three separate sites; methamphetamine was distributed from each site. A complex organization produced and distributed the methamphetamine. Brewer participated in all of these activities.
In United States v. Roberts, 747 F.2d 537 (9th Cir.1984), this court held that manufacture of marijuana and possession with intent to distribute the same marijuana are separate criminal acts under § 841(a)(1), and can be sentenced separately. See also, United States v. Rodriguez-Ramirez, 777 F.2d 454, 457-58 (9th Cir.1985) (because distribution of a sample of heroin and possession of the remainder did not occur at the same time or place, or involve the same people, separate convictions and punishments are appropriate). Similarly, separate punishments are appropriate here.
B. Evidence Considered in Sentencing Brewer
The evidence a district court considers in sentencing is reviewed for an abuse of discretion. United States v. Messer, 785 F.2d 832, 834 (9th Cir.1986). Where a trial judge relies on materially false information on sentencing, a defendant's due process rights are violated. United States v. Williams, 668 F.2d 1064, 1072 (9th Cir.1981). Brewer alleges that the district court's sentence was based upon false information contained in the presentence investigation reports of his codefendants.
Prior to his sentencing Brewer was given an opportunity to comment on his probation report, upon which the sentencing decision was actually based. He stated only that he did not "feel that [he] was involved in this as strongly as the Government is trying to say that [he] was involved in it." He has never pointed to any specific factual inaccuracy upon which the district court relied during sentencing. His allegations are general and conclusory, and do not entitle him to an evidentiary hearing. Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982).
C. Disparate Sentences
The district court has discretion to impose different sentences upon codefendants. United States v. Endicott, 803 F.2d 506, 510 (9th Cir.1986). Such disparity does not indicate an abuse of discretion, or that review is required; sentences within statutory limits are generally not subject to review. Id. Disparate sentences should be explained by the trial court when they suggest a more severe sentence was imposed upon a defendant for exercising his right to stand trial. United States v. Hall, 778 F.2d 1427, 1428 (9th Cir.1985). The district court noted that no such allegation was made and that Brewer's codefendants also chose to stand trial. Brewer's sentence does not constitute an abuse of discretion.
D. Special Parole Terms
Until a parole violation occurs, Brewer's objections to the ten life terms of special parole are speculative and are not ripe for review. We note, however, that in United States v. Salas, 602 F.2d 215, 216, n. 1 (9th Cir.1979), this court observed "[t]here is no limit on the maximum length of the special parole term. This is apparently left to the discretion of the sentencing judge." See also, United States v. Gaertner, 705 F.2d 210, 218 (7th Cir.1983), cert. denied, 464 U.S. 1071 (1984) (section 841 establishes only a minimum special parole term; no limit exists on the maximum length). Brewer's reliance on Bifulco v. United States, 447 U.S. 381 (1980), is misplaced. There the Court held only that special parole had not been authorized for conviction of a conspiracy to commit substantive violations of section 841. Id., at 400.
We find no error upon review and the district court's judgment is
AFFIRMED.