*

 This order and judgment is not binding precedent except under the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.

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, this 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 case is therefore

ordered submitted without oral argument.

Mr. Dash, appearing pro se, appeals from the district court's order denying

his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. He
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raises two related issues on appeal. First, Mr. Dash contends 21 U.S.C.

§ 841(a)(1) is unconstitutional to the extent it criminalizes the manufacture of

controlled substances with no intent to distribute such substances in commerce

(simple manufacture). Second, he claims his counsel 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 controlled substances, Mr. Dash

pleaded guilty to the manufacturing charge in exchange for the government's

agreement not to pursue a sentence of life in prison without release. The court

sentenced Mr. Dash to 360 months imprisonment and ten years supervised release.

Mr. Dash now contends his counsel should have moved to dismiss the

indictment against him on the ground § 841(a) is unconstitutional because it

exceeds Congress' power under the Commerce Clause of the United States

Constitution to regulate the manufacture of drugs with 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
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prohibit those activities that facilitate, promote, maintain, foster, advance or

otherwise contribute to the black market commerce in illegal drugs." The "simple

manufacture" of controlled substances, according to Mr. Dash, actually deters

illegal commerce in drugs and therefore does not belong in the class of activities

penalized under the Controlled Substances Act. We disagree.

Mr. Dash himself acknowledges we "must defer to a congressional finding

that a regulated activity affects interstate commerce if there is any rational basis

for such a finding." As we have recognized on numerous occasions, Congress

made explicit findings explaining the "substantial and direct effect upon interstate

commerce" of conduct regulated by the Controlled Substances 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 or foreign flow, such as

manufacture, local distribution, and possession, nonetheless have 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
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is a rational basis for Congress' finding. See United States v. Leshuk, 65 F.3d

1105, 1111-12 (4th Cir. 1995). We therefore reject Mr. 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, defense counsel cannot be held

to have been ineffective for failing to raise the issue before the district court. The

judgment of the district court is AFFIRMED.

Entered for the Court

WADE BRORBY

United States Circuit Judge