                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 26 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No. 09-30172

               Plaintiff - Appellee,             D.C. No. 1:07-cr-00171-RFC

   v.
                                                 MEMORANDUM *
 DOYLE JUSTIN LYONS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Montana
                  Richard F. Cebull, Chief District Judge, Presiding

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Doyle Justin Lyons appeals from the 360-month sentence imposed following

his jury-trial conviction for aggravated sexual abuse of a minor, in violation of 18

U.S.C. §§ 1153(a) and 2241(c). We have jurisdiction pursuant to 28 U.S.C.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

AK/Research
§ 1291, and we affirm.

       Lyons contends that the mandatory minimum sentence required by 18

U.S.C. § 2241(c) unconstitutionally violates his right to equal protection. This

contention fails because § 2241(c) does not discriminate against Native Americans,

either on its face or as applied. See City of Cleburne, Tex. v. Cleburne Living

Center, 473 U.S. 432, 440 (1985); see also Washington v. Davis, 426 U.S. 229,

241 (1976). Any disproportionate impact § 2241 has on Native Americans simply

reflects the different treatment of criminals under the Major Crimes Act who

commit crimes in a federal enclave. See United States v. Lemay, 260 F.3d 1018,

1030-31 (9th Cir. 2001); see also United States v. Antelope, 430 U.S. 641, 645,

648-49 (1977) (holding that federal legislation, although relating to Indian tribes, is

not based upon impermissible racial classifications; and that it is of no

consequence that the federal scheme differs from a state criminal code.)

       Lyons also contends that his sentence violates the Eighth Amendment

prohibition against cruel and unusual punishment. Lyons’ sentence is not so

disproportionate as to be unconstitutional, and the sentence does not become “cruel

and unusual” simply because it is mandatory. See Harmelin v. Michigan, 501 U.S.

957, 994-95 (1991); see also Hutto v. Davis, 454 U.S. 370, 374 (1982) (per

curiam) (concluding that federal courts should be reluctant to review legislatively


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mandated terms of imprisonment.)

       AFFIRMED.




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