673 F.2d 287 (9th Cir. 1982), 81-1322, United States v. Alexander

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation673 F.2d 287
Date01 April 1982
PartiesUNITED STATES of America, Plaintiff/Appellee, v. Glen ALEXANDER, Defendant/Appellant.
Docket Number81-1322.

Page 287

673 F.2d 287 (9th Cir. 1982)

UNITED STATES of America, Plaintiff/Appellee,

v.

Glen ALEXANDER, Defendant/Appellant.

No. 81-1322.

United States Court of Appeals, Ninth Circuit

April 1, 1982

Argued and Submitted Jan. 12, 1982.

Page 288

Steven J. Heiser, San Francisco, Cal., argued for defendant-appellant; Claudia Wilken, Wilken & Leverett, Berkeley, Cal., on brief.

John Gibbons, Asst. U. S. Atty., San Francisco, Cal., argued for plaintiff-appellee; Eric Swensen, Asst. U. S. Atty., San Francisco, Cal., on brief.

Appeal from the United States District Court for the Northern District of California.

Before FLETCHER, POOLE and CANBY, Circuit Judges.

PER CURIAM:

Appellant was convicted of conspiracy to distribute cocaine and possession with intent to distribute cocaine, under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. He appeals the district court's denial of his motion to dismiss the indictment. The motion was based on the ground that the Drug Enforcement Agency abused its discretion in failing to reclassify cocaine as a nonnarcotic, thus rendering the penalties for cocaine offenses unconstitutionally uncertain. The district court refused to hold an evidentiary hearing on the motion. We affirm.

It is well settled that the Schedule II classification of cocaine as a narcotic under 21 U.S.C. § 812 is constitutional. United States v. Marshall, 532 F.2d 1279, 1287-88 (9th Cir. 1976); United States v. Harper, 530 F.2d 828 (9th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976); United States v. Stieren, 608 F.2d 1135, 1136 (8th Cir. 1979); United States v. Vila, 599 F.2d 21, 25 (2d Cir. 1979); Government of Canal Zone v. Davis, 592 F.2d 887, 890 (5th Cir. 1979); United States v. Solow, 574 F.2d 1318 (5th Cir. 1978); United States v. Lane, 574 F.2d 1019, 1022 (10th Cir.), cert. denied, 439 U.S. 867, 99 S.Ct. 193, 58 L.Ed.2d 177 (1978); United States v. McCormick, 565 F.2d 286, 289 (4th Cir. 1977), cert. denied, 434 U.S. 1021, 98 S.Ct. 747, 54 L.Ed.2d 769 (1978).

This court is limited to an inquiry into whether a classification or refusal to reclassify is irrational or unreasonable; "legislative classifications need not be perfect or ideal." Marshall v. United States, 414 U.S. 417, 428, 94 S.Ct. 700, 707, 38 L.Ed.2d 618 (1974); see United States v. DiLaura, 394 F.Supp. 770, 772 (D.Mass.1974). Congress, in recognition that "controlled substances have a substantial and detrimental effect on the health and general welfare" has elected to classify cocaine as a narcotic for purposes of the Controlled Substances Act, and has not chosen to reclassify the drug to a lower schedule. 21 U.S.C. §§ 801(2), 812. In light of the drug's widespread abuse, this legislative determination is neither irrational nor unreasonable, regardless of cocaine's proper pharmacological classification. United...

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  • Schedules of Controlled Substances: Rescheduling of Hydrocodone Combination Products From Schedule III to Schedule II
    • United States
    • Federal Register August 22, 2014
    • August 22, 2014
    ...including adding to the schedules, has been repeatedly recognized and upheld in the Courts. E.g., U.S. v. Alexander, C.A.9 (Cal.) 1982, 673 F.2d 287 (1982), cert. denied, 459 U.S. 876 (Congress' delegation to Attorney General of authority to reclassify controlled substances is constitutiona......
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    ...board to ensure fairness in space allocation between the factions. See Arkansas-Best Freight System, 257 NLRB 420, 423 (1981), enfd. 673 F. 2d 288 (8th Cir. 1982). The Board has also found that when the employer maintains a rule regarding permissible posting on company bulletin boards and e......
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    • January 21, 2003
    ...board to ensure fairness in space allocation between the factions. See Arkansas-Best Freight System, 257 NLRB 420, 423 (1981), enfd. 673 F. 2d 288 (8th Cir. 1982). The Board has also found that when the employer maintains a rule regarding permissible posting on company bulletin boards and e......

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