NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 14 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-30229

                Plaintiff-Appellee,             D.C. No.
                                                1:18-cr-00061-EJL-1
 v.

DANNY RAY VANZANDT,                             MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                             for the District of Idaho
                    Edward J. Lodge, District Judge, Presiding

                             Submitted May 13, 2020**
                                Portland, Oregon

Before: BYBEE and VANDYKE, Circuit Judges, and CHHABRIA,*** District
Judge.

      In July 2018, Danny Vanzandt pleaded guilty to two crimes: 1) possession

with intent to distribute methamphetamine, and 2) possession of a firearm in


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
furtherance of a drug trafficking crime. See 21 U.S.C. § 841(a)(1); 18

U.S.C. § 924(c). He admitted that he had one prior felony drug offense, triggering

recidivist penalties applicable to the drug-possession crime. His plea subjected him

to a mandatory minimum sentence for each crime: twenty years for the

methamphetamine offense and five years for the gun offense, to be served

consecutively. The district court sentenced him accordingly.

      Vanzandt challenges his sentence on two grounds. He argues first that the

recidivist provision requiring a mandatory sentence of twenty years in prison is

unconstitutional—specifically, that it violates the Fifth, Fourteenth, and Eighth

Amendments. Second, he argues that his sentence should be reduced under the

recently enacted First Step Act, which lowered the mandatory minimum penalties

for the methamphetamine crime. The government contends that Vanzandt waived

his right to appeal. Assuming without deciding that Vanzandt did not waive his

right to appeal, we have jurisdiction to review the case and now affirm on the

merits. See United States v. Jacobo Castillo, 

, 949–50 (9th Cir. 2007)

(en banc).

      1. The sentencing scheme that requires a twenty-year mandatory minimum

sentence for Vanzandt’s drug-possession crime is constitutional. In United States v.

Jensen, the Ninth Circuit considered the constitutionality of the same scheme and

upheld a mandatory life sentence for the same offense (which applied to


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defendants with two prior drug felonies instead of one). 

, 706–08 (9th

Cir. 2005). Vanzandt is correct that the sentencing scheme leaves prosecutors

discretion to seek the recidivist penalties prescribed by federal law, and that judges

do not have discretion to impose sentences below the mandatory minimums. But

that scheme does not result in “standardless” sentences that violate due process or

the Eighth Amendment prohibition on cruel and unusual punishment. See

Nor do variations in the exercise of prosecutorial discretion violate the equal

protection guarantee. See United States v. Van Winrow, 

, 1073 (9th

Cir. 1991) (upholding the constitutionality of 21 U.S.C. § 841(b)(1)(A) over an

equal protection challenge); see also United States v. Sanchez, 

,

1445 (9th Cir. 1990) (“As long as the decision to prosecute is not deliberately

based upon an unjustifiable standard such as race, religion, or other arbitrary

classification, the prosecutor’s charging discretion remains unfettered.”) (citations

and quotation marks omitted). And even if Vanzandt’s sentence were

disproportionate to his crime, that lack of proportionality would not violate the

Eighth Amendment. Id.; see also United States v. Gomez, 

, 673–74

(9th Cir. 2006).

      2. Vanzandt is not eligible for resentencing under the First Step Act because

his sentence was imposed before the law’s enactment. See Pub. L. No. 115-391,

§ 401(c), 132 Stat. 5194, 5221 (providing that the relevant sentence reductions


                                          3
“shall apply to any offense that was committed before the date of enactment of this

Act, if a sentence for the offense has not been imposed as of such date of

enactment”); see also United States v. Asuncion, No. 18-30130, slip op. at 2 (9th

Cir. Sept. 4, 2020). Vanzandt’s sentence was imposed in October of 2018, two

months before the First Step Act was enacted, and so he may not be resentenced

under the Act.

      AFFIRMED.




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