United States of America, Plaintiff-appellee, v. Margarito Zurita-ruiz, Defendant-appellant, 70 F.3d 121 (9th Cir. 1995)

MEMORANDUM^** 

Margarito Zurita-Ruiz appeals his sentence under the Sentencing Guidelines imposed following his conviction for possession of cocaine with the intent to distribute. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

The district court properly increased Zurita-Ruiz's criminal history score by two points pursuant to U.S.S.G. Sec. 4A1.1(d) because he was on probation for furnishing false information to a police officer, a misdemeanor, at the time he committed the instant offense. See United States v. Martinez, 905 F.2d 251, 254 (9th Cir. 1990).

Zurita-Ruiz contends that the two-point increase in his criminal history score pursuant to section 4A1.1(d) for being on probation for a misdemeanor violates due process because the same increase applies to defendants on probation for a felony. We disagree.

"If a statute is not arbitrary, but implements a rational means of achieving a legitimate government end, it satisfies due process." United States v. Alexander, 48 F.2d 1477, 1491 (9th Cir. 1995). Section 4A1.1(d) is rationally related to the legitimate government interest in deterrence of repeated criminal behavior. See U.S.S.G. Ch. 4, Pt. A, intro. comment. Accordingly, we reject Zurita-Ruiz's due process challenge.

AFFIRMED.