BARRETT, Senior Circuit Judge.
In this appeal by the United States, we must decide whether the district court erred in concluding that defendant-appellee Rodney K. Lee (Lee), indicted and convicted under 21 U.S.C. § 846 (attempt to possess with intent to distribute marijuana), was not subject to the mandatory minimum five year sentencing provision of 21 U.S.C. § 841(b)(1)(B)(vii) on constitutional equal protection grounds.
That statute provides that...
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