LAY, Circuit Judge.
John Arthur Stieren appeals from the judgment of conviction for possession of cocaine with intent to distribute and dispense under 21 U.S.C. § 841(a)(1). Stieren contends that the statute is unconstitutional because "cocaine is classified as a narcotic under Schedule II of 21 U.S.C. § 812(c), when as a matter of scientific and medical fact cocaine is not a narcotic but is a non-narcotic stimulant."
The sufficiency of the evidence is not disputed. Stieren was convicted after special agents testified that he was in possession of and attempted to sell them a large quantity of cocaine. Defendant urges that the testimony and reports by physicians and scientists demonstrate that cocaine is not a narcotic. He also cites cases which hold that cocaine is not a narcotic under the pharmacological definition of the term. State v. Erickson, 574 P.2d 1 (Alaska 1978).
The cases relied upon by defendant to support the argument that classifying cocaine as a narcotic is violative of his due process and equal protection rights are general in nature. It is well settled that the classification of cocaine under Schedule II of 21 U.S.C. § 812 is not a constitutional violation. United States v. Vila, 599 F.2d 21, 25 (2d Cir. 1979); Canal Zone v. Davis, 592 F.2d 887, 890 (5th Cir. 1979); United States v. Szycher, 585 F.2d 443, 444-45 (10th Cir. 1978); United States v. Solow, 574 F.2d 1318 (5th Cir. 1978); United States v. Lane, 574 F.2d 1019, 1022 (10th Cir.), cert. denied, 439 U.S. 867, 99 S.Ct. 193, 58 L.Ed.2d 177 (1978); United States v. Wheaton, 557 F.2d 275, 277 (1st Cir. 1977); United States v. Marshall, 532 F.2d 1279, 1287-88 (9th Cir. 1976); United States v. Smaldone, 484 F.2d 311, 319-20 (10th Cir. 1973). Cf. United States v. Marshall, 526 F.2d 1349, 1360-61 (9th Cir.), cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 376 (1976); United States v. Perez, 491 F.2d 167, 172 (9th Cir. 1974) (both heroin and cocaine are "narcotic drugs"). Contra, Commonwealth v. Miller, 20 Crim.L.Rep. (BNA) 2331 (Roxbury, Mass., Dist.Mun.Ct.) (statute banning the use of cocaine was in violation of the Constitution).
Defendant urges the court to review this case under the test for determining whether there is a rational basis for the legislation, citing United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). An identical argument was made and rejected in United States v. Vila, supra and United States v. Solow, supra.
In Marshall v. United States, 414 U.S. 417, 427, 94 S.Ct. 700, 706, 38 L.Ed.2d 618 (1974), the Supreme Court observed: "When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautions not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices."
It is within the legislative prerogative to classify cocaine, which is a non-narcotic central nervous system stimulant, as a narcotic for penalty and regulatory purposes. 21 U.S.C. § 802(16)(A). The use of cocaine poses serious problems for the community and has a high potential for abuse. Congress' choice of penalty reflects a societal policy which must be adhered to by the courts.
We hold that Congress had a rational legislative purpose when it classified cocaine as a Schedule II narcotic drug for the purpose of imposing penalties.
Id. at 14 (footnotes omitted).