1The Honorable Garnett Thomas Eisele, United States District Judge for the

Eastern District of Arkansas. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 98-2962EA

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United States of America, *

 *

Appellee, *

 *

v. * On Appeal from the United States

 * District Court for the

Gloria Rodriguez-Ochoa; Rosa * Eastern District of Arkansas. 

Martinez-Simental, *

 *

Appellants. *

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 Submitted: February 4, 1999

 Filed: February 24, 1999

___________

Before McMILLIAN, RICHARD S. ARNOLD, and MORRIS SHEPPARD

ARNOLD, Circuit Judges

___________

RICHARD S. ARNOLD, Circuit Judge.

Gloria Rodriguez-Ochoa and Rosa Martinez-Simental appeal the sentences

imposed by the District Court1 following their guilty pleas to possession of a

controlled substance with intent to deliver, in violation of 21 U.S.C. § 841(a)(1).
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According to Ms. Rodriguez-Ochoa&s presentence report, she was the driver and

Martinez-Simental was a passenger in a vehicle stopped for speeding; a consensual

search of the vehicle revealed 11.41 kilograms of methamphetamine. Before

sentencing, defendants jointly moved for a downward departure under U.S.

Sentencing Guidelines Manual § 5K2.0, p.s. (1998), based on their claim that they

mistakenly believed that they were transporting marijuana, not methamphetamine.

At the sentencing hearing, the District Court denied the motion; sentenced Ms.

Rodriguez-Ochoa to 10 years imprisonment, the statutory minimum, followed by 5

years supervised release; and sentenced Ms. Martinez-Simental to 5 years and 10

months imprisonment followed by 5 years supervised release. The shorter sentence

was imposed on Ms. Martinez-Simental because she had no criminal history and

therefore qualified for a “safety valve” reduction in sentence. See U.S.S.G. § 5C1.2.

On appeal, defendants argue that the Guidelines did not contemplate a mistake

of fact such as theirs, and thus it should be the basis for a downward departure under

section 5K2.0. We disagree. The Sentencing Commission explicitly considered the

effect of a drug defendant&s mistake of fact on his or her sentencing accountability.

See U.S. Sentencing Guidelines Manual § 1B1.3, comment. (n.2(a)(1)) (1998). The

District Court correctly concluded here that it could not depart on that basis. The

crime to which defendants pleaded guilty was a violation of 21 U.S.C. § 841(a)(1),

possessing a controlled substance (any controlled substance) with the intent to

distribute it. The nature of the controlled substance becomes relevant only as a

sentencing factor. See 21 U.S.C. § 841(b)(1)(A)(viii) (mandatory minimum of ten

years for certain quantities of methamphetamine). Cf. United States v. Strange, 102

F.3d 356, 359-61 (8th Cir. 1996) (irrelevant that defendants thought they were

transporting marijuana instead of cocaine).

As the District Court said, there is a sense in which the sentence can be

described as unfair. But “it is certainly within the province of Congress to resolve
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that there is some deterrent value in exposing a drug trafficker to liability for the full

consequences, both expected and unexpected, of his own unlawful behavior.” Id. at

361.

Affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.