                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                No. 10-13247                 APR 22, 2011
                                                              JOHN LEY
                            Non-Argument Calendar               CLERK
                          ________________________

                  D.C. Docket No. 8:09-cr-00480-JDW-AEP-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

MICHAEL JOHN BROWN,

                                                            Defendant-Appellant.

                          _______________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                (April 22, 2011)

Before BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      After pleading guilty, Michael John Brown appeals his concurrent 60-

month sentences for conspiracy to manufacture and possess with intent to
distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 846,

841(a)(1) and (b)(1)(B)(vii) (Count 1), and manufacturing and possessing with

intent to distribute an unspecified quantity of marijuana, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C) (Count 2). After review, we affirm.

                           I. BACKGROUND FACTS

      Brown pled guilty to both counts charged in the indictment. The

presentence investigation report (“PSI”) calculated Brown’s initial advisory

guidelines range as 33 to 41 months’ imprisonment. However, because Count 1

carried a mandatory minimum five-year sentence pursuant to 21 U.S.C.

§ 841(b)(1)(B)(vii), the PSI noted that Brown’s advisory guidelines range became

60 months. See U.S.S.G. § 5G1.1(c)(2).

      Prior to sentencing, Brown filed a “Motion to Declare Mandatory Minimum

Sentencing Provision of 21 U.S.C. § 841(b)(1)(B)(vii) Unconstitutional and to

Impose a Sentence Below the Otherwise Applicable Minimum Sentence.” Brown

argued that: (1) the government was selectively prosecuting marijuana offenders

because the U.S. Attorney General had announced a policy of not prosecuting

marijuana distributors who were not violating their respective state’s laws; (2)

individuals who were similarly situated to him but who were located in states that

had deregulated marijuana were not being prosecuted under the Controlled

                                          2
Substances Act and, thus, were not subject to the mandatory minimum in

§ 841(b)(1)(B)(vii); (3) the government’s selective prosecution of marijuana

offenders violated his equal protection and due process rights and the Tenth

Amendment; (4) because the government was deferring to state law in determining

whom to prosecute, the district court should defer to state law in sentencing those

the government decided to prosecute; and (5) under Florida law, Brown would not

be subject to a five-year mandatory minimum sentence.

      Brown attached a copy of an October 19, 2009 memorandum from Deputy

Attorney General David Ogden stating, inter alia, that investigating and

prosecuting individuals whose actions were in clear and unambiguous compliance

with state laws allowing for the medical use of marijuana would not be the most

efficient use of federal government resources, but that, even in those states,

prosecution of commercial enterprises that unlawfully market and sell marijuana

for profit continued to be an enforcement priority.

      The district court denied Brown’s motion, concluding that: (1) Brown had

waived his selective prosecution and Commerce Clause arguments by pleading

guilty; (2) the government’s prosecutorial policy did not violate the Equal

Protection Clause as applied to Brown because there was a rational basis for

distinguishing between those states that decriminalized medical use of marijuana

                                          3
and those states that had not, and Brown “is not similarly situated with individuals

who possess marijuana for medical use in states which have decriminalized that

use”; and (3) § 841(b)(1)(B)(vii) is not facially unconstitutional because there is a

rational basis for imposing a more severe punishment for higher drug quantities.

       At sentencing, the district court imposed concurrent 60-month sentences on

each count. Brown appealed.

                                    II. DISCUSSION

       On appeal, Brown argues that the district court erred in denying his motion

to declare § 841(b)(1)(B)(vii) unconstitutional as applied to Brown.1 Brown

contends his equal protection rights were violated because the government is not

prosecuting “similarly situated defendants” in other states for the same conduct

(possessing 100 marijuana plants with intent to distribute) that subjected Brown to

§ 841(b)(1)(B)’s five-year mandatory minimum sentence.2

       We find no merit to Brown’s “as applied” equal protection claim. Any

alleged selective prosecution under § 841(a), the substantive offense, is not a basis



       1
       We review de novo the constitutionality of a statute. United States v. Phaknikone, 605
F.3d 1099, 1107 (11th Cir.), cert. denied, 131 S. Ct. 643 (2010).
       2
         On appeal, Brown does not argue that § 841(b)(1)(B)(vii)’s sentencing scheme imposing
a five-year mandatory minimum sentence when the § 841(a) offense involves 100 or more
marijuana plants: (1) on its face violates the Equal Protection Clause; (2) violates the Due
Process Clause; or (3) violates the Tenth Amendment.

                                               4
for attacking on equal protection grounds the imposition of the five-year

mandatory minimum in § 841(b)(1)(B)(vii), the penalty provision. Put another

way, Brown is not “similarly situated” to people who have never been prosecuted

for violating § 841(a). At a minimum, Brown needed to compare himself to other

defendants convicted under § 841(a) for possessing at least 100 marijuana plants

but who were not subjected to § 841(b)(1)(B)(vii).

      Brown would be hard pressed to find a sufficient comparator for such an

equal protection claim. Once a defendant pleads guilty to possessing more than

100 marijuana plants, absent a substantial assistance motion or safety-valve relief,

the district court does not have the authority, much less the discretion, to sentence

below the five-year statutory mandatory minimum. See United States v. Castaing-

Sosa, 530 F.3d 1358, 1361-62 (11th Cir. 2008). For this reason, Brown’s

argument that the district court should have “deferred” to Florida’s less severe

marijuana sentencing laws lacks merit.

      Despite Brown’s claims to the contrary, the gravamen of his equal

protection argument is not selective sentencing, but selective prosecution. As the

district court correctly concluded, Brown waived this argument when he pled

guilty. See United States v. Smith, 532 F.3d 1125, 1127 (11th Cir. 2008)




                                          5
(explaining that a defendant generally waives all non-jurisdictional challenges to

the conviction by entering a guilty plea).

      AFFIRMED.




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