* This order and judgment is not binding precedent except under the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 judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 8 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GARY WALTER DASH, Defendant-Appellant. No. 97-1273 (D.C. No. 97-B-799) (D. Colo.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.
Mr. Dash, appearing pro se, appeals from the distri ct court's order denying his 28 U.S.C. § 2255 motion to vacate, set aside, o r correct his sentence. He-2-

raises two related issues on appeal. First, Mr. Da sh contends 21 U.S.C. § 841(a)(1) is unconstitutional to the extent it cr iminalizes the manufacture of controlled substances with no intent to distribute such substances in commerce (simple manufacture). Second, he claims his counse l was ineffective for failing to raise the constitutionality issue. We conclude 21 U.S.C. § 841(a)(1) does not violate the Commerce Clause and therefore affirm Mr . Dash's sentence.
Mr. Dash was indicted and charged with one count of manufacture of methamphetamine in violation of 21 U.S.C. § 841(a)( 1). Because he previously had been convicted of four felonies involving contr olled substances, Mr. Dash pleaded guilty to the manufacturing charge in excha nge for the government's agreement not to pursue a sentence of life in priso n without release. The court sentenced Mr. Dash to 360 months imprisonment and t en years supervised release.

Mr. Dash now contends his counsel should have movedto dismiss the indictment against him on the ground § 841(a) is un constitutional because it exceeds Congress' power under the Commerce Clause o f the United States Constitution to regulate the manufacture of drugs w ith no intent to distribute. More specifically, he argues Congress' findings pertaining to its Commerce Clause authority to regulate controlled substances reflect a "fundamental intent to-3-

prohibit those activities that facilitate, promote, maintain, foster, advance or otherwise contribute to the black market commerce i n illegal drugs." The "simple manufacture" of controlled substances, according to Mr. Dash, actually deters illegal commerce in drugs and therefore does not be long in the class of activities penalized under the Controlled Substances Act. We disagree.
Mr. Dash himself acknowledges we "must defer to a c ongressional finding that a regulated activity affects interstate commer ce if there is any rational basis for such a finding." As we have recognized on nume rous occasions, Congress made explicit findings explaining the "substantial and direct effect upon interstate commerce" of conduct regulated by the Controlled Su bstances Act. See, e.g., United States v. Wacker , 72 F.3d 1453, 1475 (10th Cir. 1995, as modified Mar. 11, 1996), cert. denied, 117 S. Ct. 136 (1996) (quoting 21 U.S.C. § 801(3) -(6)). Included in those findings is the statement that "[ i]ncidents of the [drug] traffic which are not an integral part of the interstate orforeign flow, such as manufacture , local distribution, and possession, nonetheless h ave a substantial and direct effect upon interstate commerce." 21 U. S.C. § 801(3) (emphasis added). Contrary to Mr. Dash's interpretation, we read this language to include the simple manufacture of a controlled substance as an activity with a substantial effect on interstate commerce. Moreover, we agree with the Fourth Circuit there-4-

is a rational basis for Congress' finding. See United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th Cir. 1995). We therefore rejectMr. Dash's challenge to the constitutionality of the Controlled Substances Act.
Because we have determined 21 U.S.C. § 841(a) does not exceed congressional power under the Commerce Clause, defe nse counsel cannot be held to have been ineffective for failing to raise the i ssue before the district court. The judgment of the district court is AFFIRMED
.

Entered for the Court
WADE BRORBY United States Circuit Judge