132 F. 3d 41 - United States v. Naputi

MEMORANDUM*

Michael Hocog Naputi ("Naputi") appeals his sentence following his guilty plea to possession of methamphetamine, in violation of 21 U.S.C. § 844. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

Naputi assumes that the oral plea agreement in this case was a Rule 11(e)(1)(B) agreement and argues that the district court did not notify him that if the court rejected the recommendation for a two-point deduction to his offense level, he would not be allowed to withdraw his plea. However, Naputi's assumption is not supported by the record evidence, which clearly indicates that this was a Rule 11(e)(1)(A) agreement that does not require the notice to which Naputi claims he was entitled. At the change of plea hearing, the Government, pursuant to the plea agreement, asked for and was granted the dismissal of the felony possession charges in exchange for Naputi's guilty plea to the simple possession charge.

Naputi's argument on appeal that the oral plea agreement actually contained the additional promise that the Government would recommend a two-point reduction of Naputi's offense level at sentencing for substantial assistance is belied by the record. At the change of plea hearing, the Government told the district court that "the defense understands that the government has made no commitment to any specific recommendation at this time with respect to sentencing." The fact that neither Naputi nor his attorney ever objected to this characterization of the agreement, either at the change of plea hearing or the sentencing hearing, is a further indication that the two-point deduction was not part of the plea agreement. There was no error here.

There is no logical basis to support Naputi's argument that the district court concluded that "the defendant should be imprisoned until he is free from his uncontrollable problem with the illegal use of ice and marijuana." (Appellant's Opening Brief at 15.) Further, the fact that a person convicted of possessing illegal drugs is sentenced to spend ten months in prison does not violate our "evolving standards of decency" and is not "grossly disproportionate to the crime being punished." Harris v. Wright, 93 F.3d 581, 583 (9th Cir.1996). Naputi's ten-month prison sentence does not violate the Constitution.1

AFFIRMED.