                                                                             FILED
                            NOT FOR PUBLICATION                               AUG 19 2010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. 09-30245

              Plaintiff - Appellee,               D.C. No. 3:08-cr-00112-TMB-1

  v.
                                                  MEMORANDUM *
DONALD CARNELL GILLION,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Alaska
                   Timothy M. Burgess, District Judge, Presiding

                        Argued and Submitted July 29, 2010
                                Anchorage, Alaska

Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.

       Donald Carnell Gillion pled guilty to two counts of knowingly and

intentionally distributing, dispensing, or possessing with intent to distribute or

dispense 50 grams or more of a mixture or substance containing crack cocaine, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The district court sentenced him



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
to the statutory minimum of 120 months’ imprisonment on each count, to be

served concurrently. Gillion timely appeals.

      The district court’s imposition of the statutory minimum sentence under 21

U.S.C. § 841(b)(1)(A) does not violate the federal Constitution. Gillion’s equal

protection challenge to § 841(b)(1)(A) is foreclosed by United States v. Harding,

971 F.2d 410, 414 (9th Cir. 1992), and his substantive due process and Eighth

Amendment challenges are foreclosed by United States v. Norwood, 603 F.3d

1063, 1070–71 (9th Cir. 2010).

      The district court correctly concluded that Gillion is not eligible for “safety

valve” relief from the statutory minimum sentence because he has more than one

criminal history point under the federal Sentencing Guidelines. See 18 U.S.C.

§ 3553(f). The district court properly assessed one criminal history point for

Gillion’s prior conviction for misdemeanor assault, see U.S.S.G. § 4A1.2

comment. n.10, and one criminal history point for his prior conviction for

misconduct involving a controlled substance, which is not “similar” to public

intoxication, id. § 4A1.2(c)(2); see United States v. Martinez, 956 F.2d 891, 893

(9th Cir. 1992) (per curiam).

      The district court’s finding of drug quantity under the Guidelines had no

effect on Gillion’s sentence, because the statutory minimum controlled in any


                                          2
event. See U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum sentence

is greater than the maximum of the applicable guideline range, the statutorily

required minimum sentence shall be the guideline sentence.”). Accordingly,

Gillion’s challenge to the district court’s finding of drug quantity under the

Guidelines is moot. See United States v. Tsai, 282 F.3d 690, 698 (9th Cir. 2002).

      The judgment of the district court is

      AFFIRMED.




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