Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1985)

No. 85-3131.

United States Court of Appeals, Ninth Circuit.

Before TANG and CANBY, Circuit Judges, and EDWARD C. REED, Jr.,^**  District Judge.

MEMORANDUM^* 

William C. Howe appeals the sentence imposed upon him after his conviction of the offense of possession with intent to distribute lysergic acid diethylamide (LSD), a violation of 21 U.S.C. § 841(a) (1). The crime involved less than five grams of LSD. Howe was sentenced, on August 26, 1985, to a three-year term of imprisonment, a three-year special parole term, and a $50 assessment (pursuant to 18 U.S.C. § 3013).

This Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

The prison term and the special parole term were imposed upon appellant pursuant to 21 U.S.C. § 841(b), under the penalty provisions of the Comprehensive Crime Control Act of 1984, Pub. L. 98-473, 98 Stat. 2068 (1984) (West Supp.1985) which has since been amended. See Anti-Drug Abuse Act of 1986, Pub. L. 99-570, 100 Stat. 3207 (1986) (West Supp.1987). At the time of appellant's sentencing, the penalty provisions of section 841 imposed different penalties for crimes involving more than five grams of LSD and crimes involving less than five grams of LSD. One convicted of a crime involving more than five grams of LSD was subject to a term of imprisonment of up to twenty years, a fine of not more than $250,000, or both. One convicted of a crime involving less than five grams of LSD, such as appellant, was subject to a term of imprisonment of up to fifteen years, a fine of not more than $50,000, or both, plus a mandatory special parole term of at least three years.

The appellant asserts that 21 U.S.C. § 841(b), as it stood when he was sentenced, was unconstitutional in that it provided for unequal protection of the laws and imposed cruel and unusual punishment.

The appellees argue that these issues are not appealable, and that, if they are, the statute at issue was not unconstitutional.

The issues raised by appellant are appealable. The sentencing of appellant is not a pretrial matter rendered unappealable by the guilty plea. Further, the appeal in this case involves the constitutionality of the applicable sentencing provisions. Therefore, the appeal is proper even though the trial court's sentence was within statutory limits. The trial court's exercise of discretion in sentencing is not questioned in this appeal.

The issue of the constitutionality of the sentencing provision was not presented to the district court. The issue is reviewable, however, under Fed. R. Crim. P. 52(b), which allows review of "plain errors or defects affecting substantial rights" even though not brought to the attention of the trial courts. If the sentencing provision at issue provided unequal protection of the laws or imposed cruel and unusual punishment there would be a plain defect affecting substantial rights of the appellant. The Court therefore addresses the merits of the appeal.

The classification of drug offenders based upon the amount of LSD involved is not suspect. Nor does the classification burden a fundamental right. Therefore, the classification may be sustained if it is rationally related to a legitimate governmental interest. Lyng v. Castillo, 106 S. Ct. 2727, 2729-30 (1986); United States v. Smith, 818 F.2d 687, 691 (9th Cir. 1987).

The appellant's argument that the classification in the sentencing provision at issue is unrelated to a legitimate governmental interest is based upon the premise that he was punished more harshly than would be one convicted of a crime involving more than five grams of LSD. Appellant reaches this conclusion because the statute provided for a special parole in his case but would not in the case of one convicted of a crime involving more than five grams of LSD.

21 U.S.C. § 841(b) must be viewed as a whole. As Sec. 841(b) stood when appellant was sentenced, the punishment provided for those convicted of crimes involving over five grams of LSD was greater than the punishment to which appellant was subjected. Twenty years imprisonment and a $250,000 fine, the maximum possible penalty for crimes involving over five grams of LSD, is on the whole, a more severe punishment than three years imprisonment and a three-year special parole term, the penalty imposed upon Howe.

The mere inclusion of a special parole term in appellant's sentence does not affect the constitutionality of the sentencing scheme. The scheme set out in section 841(b), under the 1984 Act, still bears a rational relationship to the purpose of providing increased penalties for crimes involving greater amounts of a controlled substance. While the absence of a special parole term from the possible punishment for offenses involving over five grams of LSD may seem curious, it does not render the sentencing provision irrational.

The appellant argues that under Sec. 841(b), there is no maximum length of the special parole term, and, therefore, it is possible that one convicted of a crime involving less than five grams of LSD could receive a sentence more onerous than that faced by one convicted of a crime involving more than five grams of LSD. The appellant lacks standing to make this hypothetical argument. See Warth v. Seldin, 422 U.S. 490, 498-502 (1975); United States v. Coletta, 682 F.2d 820, 823-24 (1982); Halet v. Wend Inv. Co., 672 F.2d 1305, 1308-09 (1982). Appellant himself was subjected to punishment less than that faced by more culpable offenders. The sentencing provision operated rationally in appellant's case. His personal equal protection rights were not violated.

Finally, appellant argues that he has been subjected to cruel and unusual punishment. This argument is based completely on appellant's assertion that he received a greater penalty than could more culpable offenders. As discussed above, if the sentencing provision is considered as a whole it is clear that appellant's argument is without merit.

The Court concludes that the sentence received by appellant for possession with intent to distribute LSD did not violate appellant's constitutional rights to equal protection of the laws and to be free from cruel and unusual punishment.

AFFIRMED.