Unpublished Disposition, 867 F.2d 614 (9th Cir. 1989)

MEMORANDUM^** 

Steven Hugh Dahl appeals his sentence, following a guilty plea, for possession of 500 grams of cocaine with intent to distribute. He was sentenced, pursuant to 18 U.S.C. § 841(b) (1) (B), to the minimum mandatory term of five years imprisonment and four years supervised release. Dahl was convicted of having sold an undercover agent nearly two kilograms of cocaine that was approximately 90 percent pure.

Dahl contends that the minimum mandatory sentencing provision of section 841(b) (1) (B) offends due process and equal protection, the prohibition of cruel and unusual punishment, and the separation of powers doctrine. We rejected those arguments in United States v. Adler, 862 F.2d 210, 217 (9th Cir. 1988); United States v. Ramos, 861 F.2d 228, 232 (9th Cir. 1988); United States v. Klein, 860 F.2d 1489, 1495 (9th Cir. 1988); and United States v. Savinovich, 845 F.2d 834, 838-41 (9th Cir. 1988), cert. denied, 109 S. Ct. 369 (1988). See also United States v. Holmes, 838 F.2d 1175 (11th Cir. 1988).

The fact that the district court judge expressly stated that he would have ordered a lesser sentence had he had discretion to do so does not affect the outcome of Dahl's case. We hold, as we have held previously, that the five-year minimum mandatory sentencing provision of 21 U.S.C. § 841(b) (1) (B) is not unconstitutional on its face, nor is it unconstitutional as here applied.

AFFIRMED.