United States of America, Plaintiff-appellee, v. Frankie Contreras, Defendant-appellant, 8 F.3d 31 (9th Cir. 1993)

MEMORANDUM^** 

Frankie Contreras appeals his 120-month sentence, imposed following remand from this court. Contreras was originally convicted after entry of a guilty plea to conspiracy to possess phencyclidine (PCP) with intent to distribute in violation of 21 U.S.C. §§ 841(a), 846. Contreras contends that application of the mandatory penalty scheme of section 841 denies him due process by relying solely on the quantity, rather the purity, of the PCP. We review de novo, United States v. Wilkins, 911 F.2d 337, 338 (9th Cir. 1990), and we affirm.

Assuming without deciding that Contreras has standing to raise this issue, we conclude that his argument is foreclosed by our case law. See United States v. Chan Yu-Chong, 920 F.2d 594, 598 (9th Cir. 1990) ("The punishment scheme [of section 841] is rationally related to Congress's desire to prevent both wholesale and retail distribution of illegal drugs."); United States v. Savinovich, 845 F.2d 834, 839 (9th Cir.) (same), cert. denied, 488 U.S. 943 (1988).

AFFIRMED.