United States of America, Cross-Appellee v. George Nye Osburn, Robert Allott Osburn, Cross-Appellants

KRAVITCH, Circuit Judge:

The government appeals the district court’s finding that the sentencing scheme embodied in 21 U.S.C. § 841 is unconstitutional. Section 841 outlines a sentencing structure that punishes individuals convicted of possessing marijuana plants in proportion to the number of plants seized, regardless of the actual weight of marijuana obtainable from those plants. The statute attaches an “equivalency” to each plant seized: individuals convicted of possessing fewer than 50 plants are convicted on a 100 gram per plant basis, individuals convicted of possessing 50 or more plants…