United States v. Eugene K. Albino

Eugene Albino appeals the ten-year sentence imposed by the district court following his guilty plea to growing 2,349 marijuana plants. Albino argues that 21 U.S.C. § 841 (b)(1)(A)(vii), which classifies 1000 or more marijuana plants, regardless of weight, as equal to 1000 or more kilograms of marijuana for purposes of the ten-year mandatory minimum sentence, violates the Fifth and Eighth Amendments. We affirm.

We have rejected Albino’s Fifth Amendment argument in United States v. Motz, 936 F.2d 1021, 1025 (9th Cir.1991) (holding that “[tjhere 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”) and United States v. Belden, 957 F.2d 671, 676 (9th Cir.1992) (recognizing that the disparity in sentences between marijuana growers and marijuana possessors is rationally related to deterrence and a higher level of culpability for marijuana growers).

Albino’s Eighth Amendment claim also fails because his sentence is not grossly disproportionate to his offense. Albino pled guilty to growing 2,349 marijuana plants and received a…