Epis

concurring:

I concur in the result.

MEMORANDUM **

Bryan Epis (“Epis”) was convicted under the Controlled Substances Act (“CSA”), 21 U.S.C. §§ 841 (a)(1), 846, 860(a), for conspiracy to manufacture 1,000 marijuana plants within 1,000 feet of a school and for manufacture of 100 marijuana plants within 1,000 feet of a school. He appeals his conviction on several grounds, claiming improper retroactive application to his case of Supreme Court rulings, pros-ecutorial misconduct during his trial, an erroneous denial of judgment for acquittal, improper cross-examination regarding a prior marijuana cultivation arrest, and a claimed deficiency in the conspiracy count of the indictment allowing the jury to reach a non-unanimous verdict. He also appeals his 120-month mandatory minimum sentence, which he argues resulted from the district court’s improper denial of safety-valve relief from the mandatory minimum sentence requirements of 21 U.S.C. § 841 (a)(1) and § 860.

Epis’s convictions do not impose upon him an ex post facto punishment. Epis claims he believed that federal law prohibiting marijuana cultivation would not *563 override state law permitting it because of limitations on the federal government’s powers under the…