Accordingly, he contends, that equation is arbitrary and irrational, and therefore unconstitutional. We rejected this contention in United States v. Murphy, 979 F.2d 287 (2d Cir. 1992), where we held that congress had a rational basis for its choice of penalties; congress could have "reasonably concluded that individuals who grew 100 or more plants were as culpable as individuals found guilty of offenses involving 100 or more kilograms of marijuana." Id. at 290.
"), cert. denied, 506 U.S. 978 (1992); United States v. Eves, 932 F.2d 856, 859 (10th Cir.) (same), cert denied, 502 U.S. 884 (1991); see also United States v. Carvell, 74 F.3d 8, 9 n. 1 (1st Cir. 1996) ("`Congress intended to punish growers of marihuana by the scale or potential of their operation and not just by the weight [or size] of the plants seized at a given moment.'" (Quoting United States v. McMahon, 935 F.2d 397, 401 (1st Cir.), cert. denied, 502 U.S. 897 (1991))); United States v. Proyect, 989 F.2d 84, 88 (2d Cir.) ("[I]n enacting a mandatory minimum sentence based solely on the number of plants a grower possesses, Congress intended to punish growers of marijuana by the scale or potential of their operation and not just by the weight of the plants seized at a given moment.") (citations and internal quotation marks omitted), cert. denied, 114 S.Ct. 80 (1993); United States v. Murphy, 979 F.2d 287, 290 (2d Cir. 1992) ("Congress wanted to penalize large scale growers more harshly than small time offenders. . . . After all, if there were no large scale growers of marijuana it is unlikely that there could be large scale sellers of marijuana."); United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996) ("By providing that processed marijuana be measured by weight but live plants be counted by number and then treated as the equivalent of an amount of dry marijuana as set by statute, Congress has established a system of stepped-up punishment for growers.") (footnotes omitted); United States v. Holmes, 961 F.2d 599, 601 (6th Cir.) ("Congress and the Sentencing Commission [have] adopted a view that a person who grows over 1,000 marijuana plants is equally culpable as a person who harvests over 1000 kilograms of marijuana"), cert. denied, 506 U.S. 881 (1992); United States v. Young, 34 F.3d 500, 506 (7th Cir. 1994) (equivalency provision "`reflects Congress' judgment that an individual who grows 150 plant
And, "mindful of [a district court's] superior position to assess relevancy and to weigh the probative value of evidence against its potential for unfair prejudice," we review a district court's evidentiary rulings for "abuse of discretion."United States v. Murphy, 979 F.2d 287, 289 (2d Cir. 1992).
"[T]he constitutionality of a statute is a legal question subject to de novo review." United States v. Murphy, 979 F.2d 287, 289 (2d Cir. 1992). "[W]hen a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license."
The one aspect of the district court's order that we can review on this appeal is that court's decision that ยง 1605(a)(7) does not unconstitutionally delegate legislative power by allowing the existence of subject matter jurisdiction over foreign sovereigns to depend on the State Department's determinations of whether particular foreign states are sponsors of terrorism. That decision we review de novo. See United States v. Murphy, 979 F.2d 287, 289 (2d Cir. 1992). Section 1605(a)(7) abrogates sovereign immunity in damage actions for personal injury or death arising out of, inter alia, acts of aircraft sabotage, provided that the defendant has been designated a state sponsor of terrorism under 50 U.S.C. App. ยง 2405(j) or 22 U.S.C. ยง 2371.
"[T]he constitutionality of a statute [or policy] is a legal question subject to de novo review." United States v. Murphy, 979 F.2d 287, 289 (2d Cir. 1992).
it; manufacturing conspiracy defendant could be sentenced by applying the 1 kg/plant equivalency provision to number of previously-harvested, now dead plants); United States v. Wegner, 46 F.3d 924, 927 (9th Cir. 1995) (declining to follow Osburn and following Haynes); manufacturing defendant properly sentenced based on circumstantial evidence of number of plants grown over course of operation because "one kilogram conversion ratio applies even when live plants are not seized"); see also United States v. Lewis, No. 91-5729, 951 F.2d 350 (table), 1991 WL 278965 at [*]2 (6th Cir. Dec. 30, 1991) (20 dead root balls could be counted as marijuana plants for sentencing because they "were evidence that [defendant] had manufactured those twenty plants during the relevant period" charged in the indictment), aff'g 762 F. Supp. 1314, 1317 (E.D. Tenn. 1991) ("neither the statute nor the Guidelines makes any distinction between live and dead plants or between harvested and unharvested plants"); cf. United States v. Murphy, 979 F.2d 287, 290 (2nd Cir. 1992) (dictum) ("[I]f there is proof that a defendant has recently harvested . . . and the marijuana in his or her possession is the fruit of those poisonous plants, then that individual should be sentenced as if the plants had not yet been harvested.") (emphasis added).
When faced with a due process challenge, we must "determine whether there is `any state of facts either known or which could reasonably be assumed' to support the statute." United States v. Murphy, 979 F.2d 287, 290 (2d Cir. 1992) (quoting United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938)). The choice by Congress to enhance the penalties for those who deal in any form of cocaine base, regardless of its ultimate use, is rational.
Since the constitutionality of a statute is a legal issue, our review is de novo. United States v. Murphy, 979 F.2d 287, 289 (2d Cir. 1992). In 1968 congress sought to enact a statute that would properly protect the privacy of oral and wire communications, while providing a uniform basis for authorizing their interception in appropriate cases.
He points out that, if he had been prosecuted on the basis of the actual weight of the marijuana rather than the number of plants, he would have received a much lower sentence. Relying on the reasoning in United States v. Murphy, 786 F. Supp. 1105, 1107 (D.Conn. 1992) (now vacated by United States v. Murphy, 979 F.2d 287 (2d Cir. 1992)), Mr. Young asks this court to declare the sentencing scheme of 21 U.S.C. ยง 841(b) unconstitutional. We review a question of law de novo.