                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 _____________

                                 No. 98-2962EA
                                 _____________

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.                *
                                  ___________

                          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).


      1
       The Honorable Garnett Thomas Eisele, United States District Judge for the
Eastern District of Arkansas.
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.




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