*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 9/30/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v.

MARCUS LANTEL RASHADA,

Defendant-Appellant. 

No. 96-1012

(Dist. of Colorado)

(D.C. No. 95-CR-161-N)

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges. 

After examining the briefs and the appellate record, this three-judge panel

has unanimously determined that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
-2-

Appellant Marcus L. Rashada appeals the sentence entered against him on

January 5, 1996, in the United States District Court for the District of Colorado,

following his conviction under 21 U.S.C. § 844(a). This court exercises

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirms the

sentence imposed by the district court.

On April 27, 1995, Appellant was charged with a two count indictment: 1)

possession with intent to distribute more than five (5) grams of cocaine base; and

2) possession of more than five (5) grams of cocaine base. The district court

treated the second count of possession as a lesser-included offense of the first

count. The jury convicted Appellant of the second count, and was unable to reach

a unanimous verdict with regard to the first count. Appellant then filed a “Motion

to Declare Sentencing Provisions of Title 21 U.S.C. § 844(a) and U.S.S.G. §

2D2.1(b)(1) Unconstitutional.” The district court denied Appellant’s motion and

sentenced him to 63 months.

Appellant claims again on this appeal that 21 U.S.C. § 844(a) and the

corresponding U.S.S.G. § 2D2.1(b)(1) violate his due process and equal

protection rights under the Fifth Amendment. Whether Appellant’s proposed

sentence was unconstitutional is a legal question subject to de novo review. 

United States v. Angulo-Lopez, 7 F.3d 1506, 1508 (10th Cir. 1993).
-3-

Appellant contends that sentencing him as if he had committed possession

of cocaine base with intent to distribute, even though the jury did not find him

guilty of that charge, violated his due process and equal protection rights under

the Fifth Amendment. This court has held that social legislation, such as a crimes

classification statute, “is presumed valid and we will sustain its nonsuspect

classification system against an equal protection challenge if it is rationally

related to a legitimate state interest. Essentially the same rational relationship

test applies for a substantive due process challenge.” United States v. Mendes,

912 F.2d 434, 438 (10th Cir. 1990)(citation omitted).

Basing the severity of a sentence on the amount or type of drug possessed

does not violate equal protection or due process. See id. at 438-39; United States

v. McKneely, 69 F.3d 1067, 1080 (10th Cir. 1995). Congress has rationally

concluded that possession of more than five (5) grams of cocaine base is a serious

crime which should be severely punished. Thus, 21 U.S.C. § 844(a) mandates

severe sentencing for persons possessing more than five (5) grams of cocaine

base. Appellant was convicted under § 844(a) which provides that any person

convicted of possession of more than five (5) grams of a mixture or substance

containing cocaine base shall be imprisoned not less than five (5) years and not

more than twenty (20) years.
-4-

U.S.S.G. § 2D2.1(b)(1) sets the offense base level for possession offenses. 

It provides as follows:

If the defendant is convicted of possession of more than 5 grams of a

mixture or substance containing cocaine base, apply § 2D1.1

(Unlawful Manufacturing, Importing, Exporting, or Trafficking) as if

the defendant had been convicted of possession of that mixture or

substance with intent to distribute.

By adopting by reference the offense level set for possession with intent to

distribute cocaine base, this provision operates merely as the mechanism

effectuating the directive of § 844(a) that one possessing more than five (5) grams

of cocaine base should be severely punished. The statutory scheme equates the

seriousness of possession of more than five grams of cocaine with the seriousness

of possession with the intent to distribute the same amount. Such a determination

is not beyond the rational discretion of Congress. Furthermore, the scheme does

not result in a sentence exceeding the maximum authorized by § 844(a). Thus,

this method of determining a sentence is rationally related to the mandate of §

844(a).

This court likewise holds that the sentencing scheme employed in this case

did not result in a sentence that is unconstitutionally disproportionate. As the

United States Supreme Court has observed, “Outside the context of capital

punishment, successful challenges to the proportionality of particular sentences

have been exceedingly rare.” Rummel v. Estelle, 445 U.S. 263, 272 (1980). 
-5-

The 63 month sentence was within the sentencing guideline and is not

unconstitutional. For the reasons set forth above, we AFFIRM the sentence

imposed by the United States District Court for the District of Colorado. The

mandate shall issue forthwith.

ENTERED FOR THE COURT,

Michael R. Murphy

Circuit Judge